October 29 Rule Making Activities by TomDonnelly

VIEWS: 0 PAGES: 35

									                              RULE MAKING
                                           ACTIVITIES
Each rule making is identified by an I.D. No., which consists                    and fruits of infected plants and include green or yellow veining on
of 13 characters. For example, the I.D. No.                                      leaves; streaking or pigmented ring patterns on the petals of flowers;
                                                                                 and ring or spot blemishing on the fruit which may also become
AAM-01-96-00001-E indicates the following:                                       misshapen. The virus is spread naturally by several aphid species.
AAM        -the abbreviation to identify the adopting agency                     These insects serve as vectors for the spread of the plum pox by feed-
                                                                                 ing on the sap of infected trees and then feeding on plants which aren't
01         -the State Register issue number                                      infected with the virus. Plum pox virus may also be spread through the
96         -the year                                                             exchange of budwood and its propagation.
00001      -the Department of State number, assigned upon                           The plum pox virus was first reported in Bulgaria in 1915. It
            receipt of notice.                                                   subsequently spread through Europe, the Middle East and Africa.
E          -Emergency Rule Making—permanent action                               Plum pox was first discovered in North America in 1999 when trees in
                                                                                 an orchard in Pennsylvania were found to be infected with the virus.
            not intended (This character could also be: A                        In the summer of 2000, the plum pox virus was discovered in Ontario
            for Adoption; P for Proposed Rule Making; RP                         within five miles of its border with New York. This prompted the
            for Revised Rule Making; EP for a combined                           Department, with the support of the United States Department of
                                                                                 Agriculture (USDA), to begin annual plum pox surveys of stone fruit
            Emergency and Proposed Rule Making; EA for                           orchards in New York. From 2000 through 2005, more than 89,000
            an Emergency Rule Making that is permanent                           leaf samples were taken, analyzed and found to be negative for plum
            and does not expire 90 days after filing.)                           pox. However, in 2006, the plum pox virus was detected in two loca-
                                                                                 tions in Niagara County near the Canadian border. As a result, on July
Italics contained in text denote new material. Brackets                          16, 2007, the Department adopted, on an emergency basis, a rule
indicate material to be deleted.                                                 which immediately established a plum pox quarantine in that portion
                                                                                 of Niagara County. The plum pox virus has since been detected in
                                                                                 four (4) other locations in Niagara County as well as one location in
                                                                                 Orleans County. This rule establishes the plum pox virus quarantine in
                                                                                 Orleans County and contains the necessary extensions of that quaran-
     Department of Agriculture and                                               tine in Niagara County.
                                                                                    Based on the facts and circumstances set forth above, the Depart-
              Markets                                                            ment has determined that the immediate adoption of this rule is neces-
                                                                                 sary for the preservation of the general welfare and that compliance
                                                                                 with subdivision one of section 202 of the State Administrative Proce-
                            EMERGENCY                                            dure Act would be contrary to the public interest. The specific reason
                           RULE MAKING                                           for this finding is that failure to immediately establish a quarantine to
                                                                                 regulate the intrastate movement of stone fruit could result in the
Various Trees and Plants of the Prunus Species                                   unfettered spread of this plant virus throughout New York and into
                                                                                 neighboring states. This would not only result in damage to the agri-
I.D. No. AAM-44-08-00004-E                                                       cultural resources of the State, but could also result in a federal
Filing No. 1004                                                                  quarantine or exterior quarantines imposed by other states. Such
Filing Date: 2008-10-08                                                          quarantines would cause economic hardship for New York's stone
Effective Date: 2008-10-08                                                       fruit growers, since such quarantines may be broader than that which
                                                                                 we propose and may vary in requirements and prohibitions from state
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                      to state. The consequent loss of business would harm industries which
cedure Act, NOTICE is hereby given of the following action:                      are important to New York State's economy and as such, would harm
                                                                                 the general welfare. Accordingly, it appears that this rule should be
Action taken: Addition of Part 140 to Title 1 NYCRR.
                                                                                 implemented on an emergency basis and without complying with the
Statutory authority: Agriculture and Markets Law, sections 18, 164 and           requirements of subdivision one of section 202 of the State Adminis-
167
                                                                                 trative Procedure Act, including the minimum periods therein for no-
Finding of necessity for emergency rule: Preservation of general welfare.        tice and comment.
Specific reasons underlying the finding of necessity: This rule establishes      Subject: Various trees and plants of the Prunus species.
a plum pox virus quarantine in New York State for purposes of helping
prevent the further spread of this viral infection of stone fruit trees within   Purpose: To establish a plum pox virus quarantine in New York State.
the State.                                                                       Text of emergency rule: PART 140
   The plum pox virus, Potyvirus, is a serious viral disease of stone               CONTROL OF THE PLUM POX VIRUS (POTYVIRUS DIDERON
fruit and ornamental nursery stock that affects many of the Prunus               STRAIN)
                                                                                    Section 140.1 Definitions.
species. This includes species of plum, peach, apricot, almond and                  For the purpose of this Part, the following words, names and terms
nectarine. The plum pox virus does not kill infected plants, but seri-           shall be construed, respectively, to mean:
ously debilitates the productive life of the plants. This affects the qual-         (a) Certificate means a certificate issued or authorized to be issued by
ity and quantity of the fruit, which reduces its marketability. Symptoms         the Commissioner, certifying the eligibility of products for intrastate
of the plum pox virus may manifest themselves on the leaves, flowers             movement under the requirements of this Part.

                                                                                                                                                          1
Rule Making Activities                                                                                        NYS Register/October 29, 2008
   (b) Commissioner means the Commissioner of Agriculture and Markets             to its intersection with Shunpike Road; extends west on Shunpike to its
of the State of New York and any officer or employee of the New York              intersection with Route 93 (Townline Road); extends south on Route 93
State Department of Agriculture and Markets or the United States Depart-          (Townline Road) to its intersection with Route 270 (Campbell Boulevard);
ment of Agriculture duly delegated pursuant to section 17 of the Agricul-         extends south on Route 270 (Campbell Boulevard) to its intersection with
ture and Markets Law.                                                             Beach Ridge Road; extends southwest on Beach Ridge Road to its intersec-
   (c) Compliance agreement means an agreement approved by the Com-               tion with Townline Road; extends south on Townline Road to its intersec-
missioner and executed by persons or firms, covering the restricted move-         tion with the Tonawanda Creek; following the Tonawanda Creek west to
ment, processing, handling or utilization of regulated articles not eligible      its entry into the Niagara River; following the Niagara River north to its
for certification for intrastate movement.                                        entry into Lake Ontario.
   (d) Infection means the presence of plum pox virus.                               (b) That area of Orleans County which is bordered on the north by
   (e) Inspector means an inspector of the New York State Department of           Lake Ontario and bordered on the west by County Line Road; extends
Agriculture and Markets, or representatives of the United States Depart-          south on County Line Road to its intersection with Johnson Road; extends
ment of Agriculture Animal and Plant Health Inspection Service (USDA              east on Johnson Road to its intersection with Salt Works Road; extends
APHIS), when authorized to act in that capacity.                                  south on Salt Works Road to its intersection with the Orleans/Genesee
   (f) Limited permit means a permit issued by the Commissioner for the           County border; extends east along the Orleans/Genesee County border to
planting of regulated articles in the nursery stock regulated area for the        its intersection with Route 98 (Quaker Hill Road); extends north on Route
restricted movement of regulated articles from a regulated area to a speci-       98 (Quaker Hill Road) to its intersection with East Barre Road; extends
                                                                                  east on East Barre Road to its intersection with Culver Road; extends
fied destination for specified processing, handling or utilization.               north on Culver Road to its intersection with East Lee Road; extends east
   (g) Moved and movement means shipped, offered for shipment to a com-           on East Lee Road to its intersection with Rich's Corners Road; extends
mon carrier received for transportation or transported by a common car-           north on Rich's Corners Road to its intersection with Route 31 (Telegraph
rier, or carried, transported, moved or allowed to be moved from the              Road) and Keitel Road; extends north on Keitel Road to its intersection
regulated area.                                                                   with Zig Zag Road; extends north on Zig Zag Road to its intersection with
   (h) Nursery dealer means any person, firm, partnership, association or         Lattin Road; extends north on Lattin Road to its intersection with Route
corporation which or who is not a nursery grower or an original producer          104 (Ridge Road West); extends west on Route 104 (Ridge Road West) to
of nursery stock in the State and which or who buys, or acquires, or              its intersection with Sawyer Road; extends north on Sawyer Road to its
receives on consignment nursery stock for the purpose of reselling,               intersection with Roosevelt Highway; extends west on Roosevelt Highway
transporting, or otherwise disposing of same.                                     to its intersection with Oak Orchard Road; extends north on Oak Orchard
   (i) Nursery grower means the owner or operator of the grounds or               Road to its intersection with Point Breeze Road; extends north on Point
premises, private or public, on or which nursery stock is propagated,             Breeze Road to its intersection with Lake Ontario.
grown or cultivated for the purpose of distribution or selling the same as a         Section 140.3 Regulated area.
business. The term nursery grower shall not include persons engaged in               The following areas within the quarantined area are regulated areas:
the part-time production of plant products not sold in the regular channels          (a) That area bordered on the east by Porter Center Road; bordered on
of business.                                                                      the south by Balmer Road which terminates on Creek Road; bordered on
   (j) Nursery stock means all trees, shrubs, plants and vines and parts          the west by Creek Road, Blairville Road and the Robert Moses Parkway;
thereof.                                                                          and bordered on the north by Lake Ontario in the Town of Porter in the
   (k) Nursery stock regulated area means any area so designated by this          County of Niagara, State of New York.
Part, which is within 11.5 kilometers of any location where plum pox virus           (b) That area bordered on the north by Lake Ontario; bordered on the
has been detected within the preceding three years.                               west by Maple Road; extends south on Maple Road to its intersection with
   (l) Plum pox virus means the plum pox potyvirus Dideron strain, which          Wilson-Burt Road; extends east on Wilson-Burt Road to its intersection
is a pathogen affecting susceptible Prunus species.                               with Beebe Road; extends south on Beebe Road to its intersection with Ide
   (m) Quarantined area means the area designated as quarantined by               Road; extends east on Ide Road to its intersection with Route 78 (Lockport-
this Part.                                                                        Olcott Road); extends north on Route 78 (Lockport-Olcott Road) to its
   (n) Regulated area means an area designated as regulated pursuant to           intersection with Lake Ontario, in the Towns of Burt, Newfane, and Wilson
this Part due to the presence of plum pox virus in that area.                     in the County of Niagara, State of New York.
   (o) Regulated articles means plant and plant materials, including trees,          (c) That area bordered on the east by Porter Center Road starting at its
seedlings, root stock, budwood, branches, twigs and leaves of the follow-         intersection with Route 104 (Ridge Road) and extending north-northeast
ing varieties of the Prunus species:                                              on Porter Center Road to its intersection with Langdon Road; extends
      (1) Fruit-bearing and ornamental varieties of Prunus americana              east on Langdon Road to its intersection with Dickersonville Road;
(American plum and wild plum); Prunus armeniaca (apricot); Prunus                 extends north on Dickersonville Road to its intersection with Schoolhouse
cerasifera (Myrobalan plum/cherry plum); Prunus domestica (European               Road; extends east on Schoolhouse Road to its intersection with Ransom-
plum); Prunus dulcis (sweet almond); Prunus peresica var. persica (peach          ville Road; extends south on Ransomville Road to its intersection with
and flowering peach); Prunus persica var. nucipersica (nectarine); and            Route 104 (Ridge Road); extends east on Route 104 (Ridge Road) to its
Prunus salicina (Japanese plum).                                                  intersection with Simmons Road; extends south on Simmons Road to its
      (2) Ornamental varieties of Prunus cerasifera (purple leaf plum);           intersection with Albright Road; extends east on Albright Road to its
Prunus x cistena (purple leaf sand cherry); Prunus glandulosa (flowering          intersection with Townline Road; extends south on Townline Road to its
almond); Prunus persica (flowering peach and purple leaf peach); Prunus           intersection with Lower Mountain Road; extends west on Lower Mountain
pumila (sand cherry); Prunus spinosa (black thorn and sloe); Prunus ser-          Road to its intersection with Meyers Hill Road; extends south on Meyers
rulata (Japanese flowering cherry and Kwanzan cherry); Prunus tomen-              Hill Road to its intersection with Upper Mountain Road; extends west on
tosa ( Nanking cherry and Hansen's bush cherry); and Prunus triloba               Upper Mountain Road to its intersection with Indian Hill Road; extends
(flowering plum).                                                                 northeast on Indian Hill Road to its intersection with Route 104 (Ridge
      (3) For the purposes of this Part, the following varieties of the Prunus    Road); extends east on Route 104 (Ridge Road) to its intersection with
species are not regulated articles: Prunus avium; Prunus cerasus; Prunus          Porter Center Road, in the Town of Lewiston, in the County of Niagara,
Effuse; Prunus laurocerasus; Prunus mahaleb; Prunus padus; Prunus                 State of New York.
sargentii; Prunus serotina; Prunus serrula; Prunus subhirtella; Prunus               (d) That area bordered on the south by the Erie Canal at its intersection
yedoensis; and Prunus virginiana.                                                 with Culvert Road extending north on Culvert Road to its intersection with
      (4) For the purposes of this Part, seeds and fruit that is free of leaves   Route 104 (Ridge Road); extends east on Route 104 (Ridge Road) to its
of all varieties of the Prunus species are not regulated articles.                intersection with Kenyonville Road; extends south on Kenyonville Road to
   (p) State means the State of New York.                                         its intersection with Eagle Harbor- Knowlesville Road; extends east on
   Section 140.2 Quarantined area.                                                Eagle Harbor- Knowlesville Road to its intersection with the Erie Canal;
   (a) That area of Niagara County which is bordered on the north by              following west along the Erie Canal to its intersection with Culvert Road,
Lake Ontario and bordered on the east by Hartland Road, which extends             in the Town of Ridgeway, in the County of Orleans, State of New York.
south to its intersection with Ditch Road; extends west on Ditch Road to             Section 140.4 Nursery stock regulated area.
its intersection with Hosmer Road; extends south on Hosmer Road to its               The nursery stock regulated area shall consist of the quarantined area
intersection with Route 104 (Ridge Road); extends east on Route 104               set forth in section 140.2 of this Part, exclusive of the regulated areas set
(Ridge Road) to its intersection with Orangeport Road; and extends south          forth in section 140.3 of this Part.
on Orangeport Road to its intersection with Slayton-Settlement Road;                 Section 140.5 Conditions governing the propagation of regulated
extends west on Slayton-Settlement Road to its intersection with Route 78         articles.
(Lockport-Olcott Road); extends south on Route 78 (Lockport-Olcott                   Regulated articles originating from or growing within the regulated
Road) to its intersection with Stone Road; extends northwest on Stone             area or the nursery stock regulated area shall not be used as a source of
Road to its intersection with Sunset Drive; extends south on Sunset Drive         propagated material (either root stock, scion or seed).

2
NYS Register/October 29, 2008                                                                                              Rule Making Activities
   Section 140.6 Conditions governing the intrastate movement of                      (a) Persons intending to move intrastate any of the articles covered by
regulated articles.                                                               these regulations shall make application for certification as far in advance
   (a) Prohibited movement.                                                       as possible, and will be required to prepare and assemble articles at such
      (1) The movement of any regulated article within the regulated area         points and in such manner as the inspector shall designate, so that thor-
is prohibited.                                                                    ough inspection may be made or approved treatments verified. Articles to
      (2) The intrastate movement of any regulated article from the               be inspected as a basis for certification must be free from matter which
regulated area to any point outside the regulated area is prohibited, except      makes inspection impracticable.
pursuant to a limited permit, authorizing such movement.                              (b) The New York State Department of Agriculture and Markets or the
      (3) The intrastate movement of any regulated article from any point         United States Department of Agriculture Animal and Plant Health Inspec-
outside the regulated area to the regulated area is prohibited, except pur-       tion Service (USDA APHIS) shall not be responsible for any cost incident
suant to a limited permit, authorizing such movement.                             to inspection, treatment, or certification other than the services of the
      (4) The intrastate movement of any article infected with or suspected       inspector.
of having been exposed to the plum pox virus is prohibited, except as                 Section 140.11 Marking requirements.
provided in Section 140.12 of this Part.                                              Every container of regulated articles intended for intrastate movement
      (5) The handling of regulated articles by nursery dealers or nursery        shall be plainly marked with the name and address of the consignor and
growers within the nursery stock regulated area is prohibited, except pur-        the name and address of the consignee, when offered for shipment, and
suant to a compliance agreement.                                                  shall have securely attached to the outside thereof a valid certificate or
                                                                                  limited permit, issued in compliance with these regulations: provided,
      (6) The digging or moving of regulated articles by nursery dealers          that:
and nursery growers within the nursery stock regulated area is prohibited.            (a) for lot freight shipments, other than by road vehicle, one certificate
      (7) The planting and over-wintering of regulated articles by nursery        may be attached to one of the containers and another to the waybill; and
dealers and nursery growers within the nursery stock regulated area is            for car lot freight or express shipment, either in containers or in bulk, a
prohibited.                                                                       certificate need be attached to the waybill only and a placard to the outside
   (b) Regulated movement.                                                        of the car, showing the number of the certificate accompanying the
   Regulated articles may be moved through the regulated area if the              waybill; and
regulated articles originated outside the regulated area and:                         (b) for movement by road vehicle, the certificate shall accompany the
      (1) the point of origin of the regulated articles is on the waybill or      vehicle and be surrendered to consignee upon delivery of shipment.
bill of lading; and                                                                   Section 140.12 Shipments for experimental and scientific purposes.
      (2) a certificate accompanies the regulated articles; and                       Regulated articles may be moved intrastate for experimental or scien-
      (3) the vehicle moving the regulated articles does not stop within the      tific purposes, on such conditions and under such safeguards as may be
regulated area except for refueling; and                                          prescribed by the New York State Department of Agriculture and Markets.
      (4) the vehicle moving the regulated articles during the period April       The container of articles so moved shall bear, securely attached to the
1 through November 30 is either an enclosed vehicle or a vehicle                  outside thereof, an identifying tag issued by the New York State Depart-
completely covered by canvas, plastic or closely woven cloth to prevent           ment of Agriculture and Markets showing compliance with such
access by aphids or other vectors of plum pox virus.                              conditions.
   Section 140.7 Records.
   Nursery dealers and nursery growers handling regulated articles within         This notice is intended to serve only as an emergency adoption, to be
the nursery stock regulated area shall compile, maintain and make avail-          valid for 90 days or less. This rule expires January 5, 2009.
able for inspection, for a period of two years, records of inventory and          Text of rule and any required statements and analyses may be obtained
sales of regulated articles on a form or forms prescribed by the                  from: Robert J. Mungari, Director, Division of Plant Industry, Department
Commissioner.                                                                     of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235,
   Section 140.8 Conditions governing the issuance of certificates and            (518) 457-2087
permits.                                                                          Regulatory Impact Statement
   (a) Certificates may be issued for the intrastate movement of regulated           1. Statutory authority:
articles under one or more of the following conditions:
      (1) when they have been tested and found apparently free from infec-           Section 18 of the Agriculture and Markets Law provides, in part,
tion; or                                                                          that the Commissioner may enact, amend and repeal necessary rules
      (2) when they have been grown, produced, manufactured, stored, or           which shall provide generally for the exercise of the powers and per-
handled in such a manner that, in the judgment of the inspector, no infec-        formance of the duties of the Department as prescribed in the
tion would be transmitted thereby, provided, that subsequent to certifica-        Agriculture and Markets Law and the laws of the State and for the
tion, the regulated articles will be loaded, handled, and shipped under           enforcement of their provisions and the provisions of the rules that
such protection and safeguards against reinfection as are required by the
inspector.                                                                        have been enacted.
   (b) Limited permits may be issued for the movement of noncertified                Section 164 of the Agriculture and Markets Law provides, in part,
regulated articles to specified destinations for specified processing,            that the Commissioner shall take such action as he may deem neces-
handling, or utilization. Persons shipping, transporting, or receiving such       sary to control or eradicate any injurious insects, noxious weeds, or
articles may be required to enter into compliance agreements to maintain          plant diseases existing within the State.
such sanitation safeguards against the establishment and spread of infec-
tion and to comply with such conditions as to the maintenance of identity,           Section 167 of the Agriculture and Markets Law provides, in part,
handling, processing, or subsequent movement of regulated products and            that the Commissioner is authorized to make, issue, promulgate and
the cleaning of cars, trucks and other vehicles used in the transportation        enforce such order, by way of quarantines or otherwise, as he may
of such articles, as may be required by the inspector. Failure to comply          deem necessary or fitting to carry out the purposes of Article 14 of
with conditions of the agreement will result in cancellation of a limited         said Law. Said Section also provides that the Commissioner may adopt
permit.                                                                           and promulgate such rules and regulations to supplement and give full
   (c) Certificates or limited permits issued under these regulations may         effect to the provisions of Article 14 of the Agriculture and Markets
be withdrawn or canceled by the Commissioner and further certification            Law as he may deem necessary.
refused whenever in his or her judgment the further use of such certifi-
cates or limited permits may result in the spread of the plum pox virus.             2. Legislative objectives:
   Section 140.9 Inspection and disposition of shipments.                            The proposed rule establishing a quarantine accords with the public
   Any car or other conveyance, any package or other container, and any           policy objectives the Legislature sought to advance by enacting the
article or thing to be moved, which is moving, or which has been moved            statutory authority in that it will help to prevent the further spread
intrastate from the regulated area, which contains, or which the inspector        within the State of a serious viral infection of plants, the plum pox
has probable cause to believe may contain, regulated articles or other
articles infected with the plum pox virus, may be examined by an inspector        virus (Potyvirus).
at any time or place. When regulated articles are found to be moving or to           3. Needs and benefits:
have been moved intrastate in violation of these regulations, the inspector          This rule establishes a plum pox virus quarantine in New York State
may take such action as he or she deems necessary to eliminate the danger         for purposes of helping prevent the further spread of this viral infec-
of the spread of the plum pox virus. If found to be infected, such articles or
regulated articles shall be freed of infection without cost to the State except   tion of plants within the State.
that for inspection and supervision.                                                 The plum pox virus, Potyvirus, is a serious viral disease of stone
   Section 140.10 Assembly of regulated articles for inspection.                  fruit trees that affects many of the Prunus species. This includes spe-

                                                                                                                                                              3
Rule Making Activities                                                                                   NYS Register/October 29, 2008

cies of plum, peach, apricot, almond and nectarine. The plum pox              originate outside the regulated areas and the point of origin of the
virus does not kill infected plants, but debilitates the productive life of   regulated articles is on the waybill or bill of lading; a certificate ac-
the trees. This affects the quality and quantity of the fruit, which re-      companies the regulated articles; the vehicle moving the regulated
duces its marketability. Symptoms of the plum pox virus may manifest          articles does not stop except for refueling; and the vehicle moving the
themselves on the leaves, flowers and fruits of infected plants and           regulated articles during the period April 1 through November 30 is
include green or yellow veining on leaves; streaking or pigmented             either an enclosed vehicle or is completely covered by canvas, plastic
ring patterns on the petals of flowers; and ring or spot blemishing on        or closely woven cloth.
the fruit which may also become misshapen. There is no known treat-              In the nursery stock regulated areas, the amendments prohibit the
ment or cure for this virus. The virus is spread naturally by several         following: the handling of regulated articles by nursery dealers or
aphid species. These insects serve as vectors for the spread of the           nursery growers, except pursuant to a compliance agreement; the dig-
plum pox virus by feeding on the sap of infected trees and then feed-         ging or moving of regulated articles by nursery dealers and nursery
ing on plants which aren't infected with the virus. Plum pox virus may        growers; and the planting and over-wintering of regulated articles by
also be spread through the exchange of budwood and its propagation.           nursery dealers and nursery growers.
   The plum pox virus was first reported in Bulgaria in 1915. It                 Under the amendments, certificates may be issued when the
subsequently spread through Europe, the Middle East and Africa.               regulated articles have been inspected and found to be free of infec-
Plum pox was first discovered in North America in 1999 when trees in          tion or have been grown, produced, stored or handled in such a man-
an orchard in Pennsylvania were found to be infected with the virus.          ner that, in the judgment of the inspector, no infection is present in the
In the summer of 2000, the plum pox virus was discovered in Ontario           articles. Limited permits may be issued for the movement of noncerti-
within five miles of its border with New York. This prompted the              fied articles to specified destinations for specified purposes. The
Department, with the support of the United States Department of               amendments provide that persons shipping, transporting, or receiving
Agriculture (USDA), to begin annual plum pox surveys of stone fruit           such articles may be required to enter into written compliance
orchards in New York. From 2000 through 2005, more than 89,000                agreements. These agreements would allow the shipment of articles
leaf samples were taken, analyzed and found to be negative for the            without a state or federal inspection. They are entered into by the
plum pox virus. However, in 2006, the plum pox virus was detected in          Department with persons who are determined to be capable of comply-
two locations in Niagara County near the Canadian border. As a result,        ing with the requirements necessary to insure that the plum pox virus
on July 16, 2007, the Department adopted, on an emergency basis, a            is not spread. Under the amendments, certificates and limited permits
rule which immediately established a plum pox quarantine in that por-         may be withdrawn or canceled whenever an inspector determines that
tion of Niagara County. The plum pox virus has since been detected in         further use of such certificate or permit might result in the spread of
four (4) other locations in Niagara County as well as one location in         infection.
Orleans County.
                                                                                 The amendments are necessary, since although the virus has only
   This rule establishes the plum pox virus quarantine in Orleans             been found in seven locations in Niagara County and Orleans County,
County and contains the necessary extensions of that quarantine in Ni-        the failure to immediately establish this quarantine could result in the
agara County. The amendments create two (2) separate and non-                 unfettered spread of this plant virus throughout New York and into
contiguous quarantined areas; one quarantined area is in Niagara              neighboring states. This would not only result in damage to the natural
County, and the other is in Orleans County.                                   resources of New York, but could also result in the imposition on New
   Within the quarantined area in Niagara County, there are three (3)         York of a federal quarantine or quarantines by other states. Such
regulated areas and one nursery stock regulated area. The first               quarantines would cause economic hardship for New York's nurseries
regulated area extends 1.5 to 2 kilometers from one point where the           and stone fruit growers, since such quarantines may be broader than
plum pox virus was detected in 2006. The second regulated area                this one. The consequent loss of business would harm industries which
extends 1.5 to 2 kilometers from the point where the plum pox virus           are important to New York's economy and as such, would harm the
was recently detected this year. The third regulated area extends 1.5 to      general welfare.
2 kilometers from each of the three (3) points where the plum pox                4. Costs:
virus was recently detected this year as well as from one point where
the virus was detected in 2006. The nursery stock regulated area                 (a) Costs to the State government:
extends 11.5 kilometers from the regulated areas in Niagara County               Regulated articles in the regulated areas that are exposed to plum
where the plum pox virus was detected.                                        pox virus would be destroyed. Compensation for the regulated articles
   Within the quarantined area in Orleans County, there is one                is predicated upon the age of the plants and trees. Compensation would
regulated area and one nursery stock regulated area. The regulated            range from $4,368 to $17,647 per acre, of which the USDA would pay
area extends 1.5 to 2 kilometers from the point in Orleans County             85% of the compensation. Accordingly, New York's 15% share of the
where the plum pox virus was recently detected. The nursery stock             compensation would be $655 to $2,647 per acre, provided the owners
regulated area extends 11.5 kilometers from the regulated area in             of the regulated articles in question submit verified claims to the
Orleans County where the plum pox virus was detected.                         Department in accordance with section 165 of the Agriculture and
                                                                              Markets Law, and provided further that damages are awarded based
   The amendments prohibit the movement of any article infected with          on those claims.
or suspected of having been exposed to the plum pox virus, regardless
of where the articles are located in the State. Otherwise, only the              Nursery dealers and nursery growers would also be eligible to
movement of regulated articles i.e., plants and trees of any Prunus           receive compensation for regulated articles planted in the regulated
species susceptible to plum pox virus, are restricted under the amend-        areas and nursery stock regulated areas that would otherwise be
ments, and the extent of those restrictions depends on whether the            prohibited from sale. New York would pay up to $1,000 per acre in
regulated articles are in the regulated areas or the nursery stock            costs to remove such regulated articles.
regulated areas.                                                                 (b) Costs to local government: none
   In the regulated areas, the amendments prohibit the following: the            (c) Costs to private regulated parties:
movement of regulated articles within the regulated areas; the intra-            Regulated parties handling regulated articles in the nursery stock
state movement of regulated articles from the regulated areas to any          regulated areas, pursuant to a compliance agreement, may require an
point outside the regulated areas, except pursuant to a limited permit,       inspection and the issuance of a federal or state phytosanitary certifi-
authorizing such movement; and the intrastate movement of regulated           cate for interstate movement. This service is available at a rate of
articles from any point outside the regulated areas to the regulated ar-      $25.00 per hour. Most inspections would take one hour or less. It is
eas, except pursuant to a limited permit, authorizing such movement.          anticipated that there would be 100 such inspections each year with a
   The amendments also regulate the movement of regulated articles            total annual cost of $2,500.
through the regulated areas. Under the amendments, regulated articles            Most shipments will be made pursuant to compliance agreements
may be moved through the regulated areas if the regulated articles            for which the costs may be lower.

4
NYS Register/October 29, 2008                                                                                        Rule Making Activities

   Regulated parties would also incur those removal costs which                  Under the amendments, all regulated parties would be prohibited
exceed $1,000 per acre for removal of regulated articles planted in the       from moving any article infected with or suspected of having been ex-
regulated areas and nursery stock regulated areas.                            posed to the plum pox virus, regardless of where the articles are lo-
   (d) Costs to the regulatory agency:                                        cated in the State.
   It is anticipated that regulatory oversight and enforcement of the            3. Professional services.
quarantine would require the hiring of two inspectors at an annual cost          In order to comply with the proposed rule, regulated parties
to the Department of $150,900. This cost includes salary, fringe              handling regulated articles in the nursery stock regulated areas, pursu-
benefits, travel costs, computer hardware and support and cell phones         ant to a compliance agreement, may require an inspection and issu-
for the persons hired.                                                        ance of a federal or state phytosanitary certificate for interstate
   5. Local government mandate:                                               movement.
   None.                                                                         4. Compliance costs:
   6. Paperwork:                                                                 (a) Initial capital costs that will be incurred by a regulated business
   Nursery dealers and nursery growers handling regulated articles in         or industry or local government in order to comply with the proposed
the nursery stock regulated areas would require a compliance agree-           rule: None
ment with the Department. They may also require an inspection and                (b) Annual cost for continuing compliance with the proposed rule:
the issuance of a federal or state phytosanitary certificate for interstate      Regulated parties handling regulated articles in the nursery stock
movement of these regulated articles.                                         regulated areas, pursuant to a compliance agreement, may require an
   7. Duplication:                                                            inspection and the issuance of a federal or state phytosanitary certifi-
   None                                                                       cate for interstate movement. This service is available at a rate of
   8. Alternatives:                                                           $25.00 per hour. Most inspections would take one hour or less. It is
                                                                              anticipated that there would be 100 such inspections each year with a
   None. The failure of the State to establish a quarantine could result
                                                                              total annual cost of $2,500.
in the establishment of quarantines by the federal government or other
states. It could also place the State's own natural resources at risk            Most shipments will be made pursuant to compliance agreements
from the further spread of plum pox virus which could result from the         for which the costs may be lower.
unrestricted movement of regulated articles in the regulated areas. In           Regulated parties would also incur those removal costs which
light of these factors, there does not appear to be any viable alternative    exceed $1,000 per acre for removal of regulated articles planted in the
to the establishment of the quarantine proposed in this rulemaking.           regulated areas.
   9. Federal standards:                                                         Local governments moving regulated articles to or through the
   Sections 301.74 through 301.74-5 of Title 7 of the Code of Federal         regulated areas would incur similar costs.
Regulations (CFR) restricts the interstate movement of regulated                 5. Minimizing adverse impact:
articles susceptible to the plum pox virus. This rule does not exceed            The Department has designed the proposed rule to minimize
any minimum standards for the same or similar subject areas, since it         adverse economic impact on small businesses and local governments.
restricts the intrastate, rather than interstate, movement of regulated       The proposal limits the regulated articles to only those varieties of the
articles by establishing a plum pox virus quarantine in New York State.       Prunus species which are susceptible to infection by plum pox virus.
   10. Compliance schedule:                                                   The proposal also limits the inspection and permit requirements to
   It is anticipated that regulated persons would be able to comply           only those necessary to detect the presence of plum pox virus and to
with the rule immediately.                                                    prevent its spread through regulated articles in the regulated areas. As
                                                                              set forth in the regulatory impact statement, the rule provides for
Regulatory Flexibility Analysis
                                                                              agreements between the Department and regulated parties that permit
    1. Effect on small business.                                              the movement of regulated articles without state or federal inspection.
    The rule establishes a plum pox virus quarantine in New York State.       These agreements are another way in which the proposed rule was
It is estimated that there are 312 stone fruit growers and 4,049 nursery      designed to minimize adverse impact. The approaches for minimizing
growers and nursery dealers throughout New York State. Of these,              adverse economic impact required by section 202-a(1) of the State
there are approximately 35 stone fruit growers and 50 nursery growers         Administrative procedure Act and suggested by section 202-b(1) of
or nursery dealers in the nursery stock regulated areas, and 29 stone         the State Administrative Procedure Act were considered. Given all of
fruit growers in the regulated areas. Most of these entities are small        the facts and circumstances, it is submitted that the rule minimizes
businesses.                                                                   adverse economic impact as much as is currently possible.
    Although it is not anticipated that local governments would be               6. Small business and local government participation:
involved in the handling or movement of regulated articles within the            In 1999, a Plum Pox Virus Task Force was established in response
quarantined areas, in the event that they do, they would be subject to        to the reported discovery of the virus in Pennsylvania. The Task Force
the same requirements and restrictions as are other regulated parties.        presently consists of representatives of the Department, the New York
    2. Compliance requirements.                                               State Agricultural Experiment Station in Geneva; the Untied States
    All regulated parties in the nursery stock regulated areas, which         Department of Agriculture, Cornell Cooperative Extension, the New
includes approximately 35 stone fruit growers and 50 nursery growers          York State Farm Bureau, the Canadian Food Inspection Agency and
or nursery dealers, would be prohibited from the propagation of               the stone fruit industry. The Task Force has convened annually via
regulated articles. Nursery growers and nursery dealers who wish to           teleconference.
handle regulated articles in the nursery stock regulated areas would be          On October 3, 2006, February 15, 2007 and May 22, 2007, the
required to enter into a compliance agreement.                                director of the Department's Division of Plant Industry provided an
    The amendments would prohibit regulated parties in the nursery            overview of the plum pox virus and its discovery in New York to the
stock regulated areas from digging and moving regulated articles and          Invasive Species Task Force in Albany; the Empire State Fruit and
planting or over-wintering regulated articles. In addition, regulated         Vegetable Expo in Syracuse; and the Statewide Survey Committee of
parties would be required to maintain sales records of regulated              the Cooperative Agricultural Pest Survey Program in Albany,
articles for a period of three years.                                         respectively.
    All regulated parties in the regulated areas, which include ap-              The Department has provided Cornell Cooperative Extension with
proximately 29 stone fruit growers, would be prohibited from moving           information on the plum pox virus for dissemination to stone fruit
regulated articles within the regulated areas. Regulated parties would,       growers. Inspectors with the Department's Division of Plant Industry
however, be able to move regulated articles to and from the regulated         have also discussed the needs and benefits of this regulation with stone
areas pursuant to a limited permit.                                           fruit growers in the regulated and quarantine areas.

                                                                                                                                                      5
Rule Making Activities                                                                                  NYS Register/October 29, 2008

   On June 26, 2007, Department officials met with approximately 30           4. Minimizing adverse impact:
stone fruit growers to discuss the plum pox virus outbreak as well as
the proposed regulations establishing the quarantine. Most of the              The Department has designed the proposed rule to minimize
growers recognized the need to proceed with the quarantine, and             adverse economic impact on small businesses and local governments.
expressed the desire that New York's response be consistent with that       The proposal limits the regulated articles to only those varieties of the
of Pennsylvania, Michigan and the federal government. Several grow-         Prunus species which are susceptible to infection by plum pox virus.
ers also questioned when compensation would be paid following the           The proposal also limits the inspection and permit requirements to
destruction and removal of infected trees.                                  only those necessary to detect the presence of plum pox virus and to
   Outreach efforts will continue.                                          prevent its spread through regulated articles in the regulated areas. As
   7. Assessment of the economic and technological feasibility of           set forth in the regulatory impact statement, the rule provides for
compliance with the rule by small businesses and local governments:         agreements between the Department and regulated parties that permit
                                                                            the movement of regulated articles without state or federal inspection.
   The economic and technological feasibility of compliance with the
proposed rule by small businesses and local governments has been ad-        These agreements are another way in which the proposed rule was
dressed and such compliance has been determined to be feasible. Nurs-       designed to minimize adverse impact. The approaches for minimizing
ery dealers and nursery growers handling regulated articles within the      adverse economic impact required by section 202-a(1) of the State
nursery stock regulated areas, other than pursuant to a compliance          Administrative procedure Act and suggested by section 202-b(1) of
agreement, would require an inspection and the issuance of a phyt-          the State Administrative Procedure Act were considered. Given all of
osanitary certificate. Most shipments, however, would be made pursu-        the facts and circumstances, it is submitted that the rule minimizes
ant to compliance agreements for which there is no charge.                  adverse economic impact as much as is currently possible.
Rural Area Flexibility Analysis                                               5. Rural area participation:
    1. Type and estimated numbers of rural areas:
                                                                               In 1999, a Plum Pox Virus Task Force was established in response
    The rule establishes a plum pox virus quarantine in New York State.
It is estimated that there are 312 stone fruit growers and 4,049 nursery    to the reported discovery of the virus in Pennsylvania. The Task Force
growers and nursery dealers throughout New York State. Of these,            presently consists of representatives of the Department, the New York
there are 35 stone fruit growers and 50 nursery growers or nursery          State Agricultural Experiment Station in Geneva; the Untied States
dealers in the nursery stock regulated areas, and 29 stone fruit growers    Department of Agriculture, Cornell Cooperative Extension, the New
in the regulated areas. Many of these entities are located in rural areas   York State Farm Bureau, the Canadian Food Inspection Agency and
of New York State.                                                          the stone fruit industry. The Task Force has convened annually via
    2. Reporting, record keeping and other compliance requirements;         teleconference.
and professional services:                                                     On October 3, 2006, February 15, 2007 and May 22, 2007, the
    All regulated parties in the nursery stock regulated areas, which       director of the Department's Division of Plant Industry provided an
includes approximately 35 stone fruit growers and 50 nursery growers        overview of the plum pox virus and its discovery in New York to the
or nursery dealers, would be prohibited from the propagation of             Invasive Species Task Force in Albany; the Empire State Fruit and
regulated articles. Nursery growers and nursery dealers who wish to         Vegetable Expo in Syracuse; and the Statewide Survey Committee of
handle regulated articles in the nursery stock regulated areas would be     the Cooperative Agricultural Pest Survey Program in Albany,
required to enter into a compliance agreement.                              respectively.
    The amendments would prohibit regulated parties in the nursery
stock regulated areas from digging and moving regulated articles and           The Department has provided Cornell Cooperative Extension with
planting or over-wintering regulated articles. In addition, regulated       information on the plum pox virus for dissemination to stone fruit
parties would be required to maintain sales records of regulated            growers. Inspectors with the Department's Division of Plant Industry
articles for a period of three years.                                       have also discussed the needs and benefits of this regulation with stone
    In order to comply with the proposed rule, regulated parties            fruit growers in the regulated and quarantine areas.
handling regulated articles in the nursery stock regulated areas, pursu-       On June 26, 2007, Department officials met with approximately 30
ant to a compliance agreement, may require an inspection and issu-          stone fruit growers to discuss the plum pox virus outbreak as well as
ance of a federal or state phytosanitary certificate for interstate         the proposed regulations establishing the quarantine. Most of the
movement.                                                                   growers recognized the need to proceed with the quarantine, and
    All regulated parties in the regulated areas, which include ap-         expressed the desire that New York's response be consistent with that
proximately 29 stone fruit growers, would be prohibited from moving         of Pennsylvania, Michigan and the federal government. Several grow-
regulated articles within the regulated areas. Regulated parties would,     ers also questioned when compensation would be paid following the
however, be able to move regulated articles to and from the regulated       destruction and removal of infected trees.
areas pursuant to a limited permit.
    Under the amendments, all regulated parties would be prohibited           Outreach efforts will continue.
from moving any article infected with or suspected of having been ex-       Job Impact Statement
posed to the plum pox virus, regardless of where the articles are lo-
cated in the State.                                                         The establishment of a plum pox virus quarantine is designed to prevent
    3. Costs:                                                               the further spread of this viral infection throughout New York State as
                                                                            well as into neighboring states and provinces. It is estimated that there are
    Regulated parties handling regulated articles in the nursery stock      312 stone fruit growers and 4,049 nursery growers and nursery dealers
regulated areas pursuant to compliance agreement, may require an            throughout New York State. Of these, there are 35 stone fruit growers and
inspection and the issuance of a federal or state phytosanitary certifi-    50 nursery growers or nursery dealers in the nursery stock regulated areas,
cate for interstate movement. This service is available at a rate of        and 29 stone fruit growers in the regulated areas. A further spread of this
$25.00 per hour. Most inspections would take one hour or less. It is        plant infection would have very adverse economic consequences to these
anticipated that there would be 100 such inspections each year with a       industries in New York State, both from the destruction of the regulated
total annual cost of $2,500.                                                articles upon which these industries depend, and from the more restrictive
    Most shipments will be made pursuant to compliance agreements           quarantines that could be imposed by the federal government and by other
for which the costs will be lower.                                          states. By helping to prevent the spread of the plum pox virus, the rule
    Regulated parties would also incur those removal costs which            would help to prevent such adverse economic consequences and in so do-
exceed $1,000 per acre for removal of regulated articles exposed to         ing, protect the jobs and employment opportunities associated with the
the plum pox virus.                                                         State’s stone fruit and nursery industries.

6
NYS Register/October 29, 2008                                                                                           Rule Making Activities
                                                                              with medications that are administered under conditions consistent with
                                                                              their pharmacological efficacy, and when treatment includes necessary
           Office of Alcoholism and                                           supportive services such as psychosocial counseling, treatment for co-
                                                                              occurring disorders, medical services and, when appropriate, vocational
           Substance Abuse Services                                           rehabilitation. Medication assisted treatment can be effective in facilitat-
                                                                              ing recovery from opioid addiction for many patients. The proposed
                                                                              regulation sets forth standards to guide opioid addiction treatment.
                           EMERGENCY                                             1. Statutory Authority:
                                                                                 Section 19.07(e) of the Mental Hygiene Law authorizes the Commis-
                          RULE MAKING                                         sioner of the Office of Alcoholism and Substance Abuse Services (‘‘the
                                                                              Commissioner’’) to adopt standards including necessary rules and regula-
Administration of ‘‘Other Approved Agents’’                     Such    as    tions pertaining to chemical dependence services.
Buprenorphine to Treat Opioid Addictions                                         Section 19.09(b) of the Mental Hygiene Law authorizes the Commis-
I.D. No. ASA-44-08-00002-E                                                    sioner to adopt regulations necessary and proper to implement any matter
                                                                              under his or her jurisdiction.
Filing No. 1002                                                                  Section 19.21(b) of the Mental Hygiene Law requires the Commis-
Filing Date: 2008-10-08                                                       sioner to establish and enforce certification, inspection, licensing and treat-
Effective Date: 2008-10-08                                                    ment standards for alcoholism, substance abuse, and chemical dependence
                                                                              facilities.
                                                                                 Section 19.21(d) of the Mental Hygiene Law requires the Commis-
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                   sioner to promulgate regulations which establish criteria to evaluate
cedure Act, NOTICE is hereby given of the following action:                   chemical dependence treatment effectiveness and to establish a procedure
Action taken: Amendment of Part 828 of Title 14 NYCRR.                        for reviewing and evaluating the performance of providers of services in a
Statutory authority: Mental Hygiene Law, sections, 19.07(b), (e),             consistent and objective manner.
19.21(b), 19.40, 32.01, 32.05(b), 32.07(a) and (b)                               Section 32.01 of the Mental Hygiene Law authorizes the Commissioner
Finding of necessity for emergency rule: Preservation of public health,       to adopt any regulation reasonably necessary to implement and effectively
public safety and general welfare.                                            exercise the powers and perform the duties conferred by Article 32.
                                                                                 Section 32.05 of the Mental Hygiene Law requires providers to obtain
Specific reasons underlying the finding of necessity: The proper              an operating certificate issued by the Commissioner in order to operate
administration and availability of buprenorphine and other approved           chemical dependence services including but not limited to methadone.
agents to treat opioid addiction is necessary to ensure that those persons       Section 32.07(a) of the Mental Hygiene Law gives the Commissioner
suffering from addiction can get the most advanced and most appropriate       the power to adopt regulations to effectuate the provisions and purposes of
treatment for their disease.                                                  Article 32.
Subject: Administration of ‘‘other approved agents’’ such as buprenor-           Section 32.09(b) of the Mental Hygiene Law gives the Commissioner
phine to treat opioid addictions.                                             the power to withhold an operating certificate for a Methadone provider
Purpose: To ensure that all persons will have equal access to the appropri-   until statutory requirements are satisfied.
ate ‘‘approved agent’’ to treat their opioid addiction.                          The relevant sections of the Mental Hygiene Law cited above, allow the
Text of emergency rule: PART 828                                              Commissioner to regulate how chemical dependency services are
   AMENDMENT TO: REQUIREMENTS FOR THE OPERATION OF                            administered. This regulation will alter the way those services are
CHEMOTHERAPY SUBSTANCE ABUSE PROGRAMS.                                        administered, providing greater flexibility within the State regulations in
   § 828.1 Definitions.                                                       alignment with Federal rules promulgated by SAMHSA in 2003. The
   (a) Methadone program means a substance abuse program using                objective is in line with the legislative intent behind the enactment of Sec-
methadone or other approved agents, and offering a range of treatment         tions 19, 22 and 32 of the Mental Hygiene Law, allowing the Commis-
procedures and services for the rehabilitation of persons dependent on        sioner to certify, inspect, license and establish treatment standards for all
opium, morphine, heroin or any derivative or synthetic drug of that group.    facilities that treat chemical dependency. Revising policy and procedures
      (1) Methadone maintenance means a treatment procedure using             with regard to opioid treatment, will establish a standard for all facilities,
methadone or any of its derivatives, or other approved agents, adminis-       which is in the best interest of the patient, and will assist opioid treatment
tered over a period of time to relieve withdrawal symptoms, reduce crav-      programs to provide better health care services and recovery from opioid
ing and permit normal functioning so that, in combination with rehabilita-    addiction.
tive services, patients can develop productive life styles.                      2. Legislative Objectives:
         (i) Methadone to abstinence means a treatment procedure using           Chapter 558 of the Laws of 1999 requires the promulgation of rules and
methadone, or other approved agents, administrated for a period exceed-       regulations to regulate and assure the consistent high quality of services
ing 21 days, as part of a planned course of treatment involving reduction     provided within the State to persons suffering from chemical abuse or de-
in dosage to the point of abstinence followed by drug-free treatment.         pendence, their families and significant others, as well as those who are at
         (ii) Methadone maintenance aftercare means a planned course of       risk of becoming chemical abusers. The legislature enacted Section 19,
treatment for methadone, or other approved agents maintenance patients,       enabling the Commissioner to establish best practices for treating chemi-
directed toward the achievement of abstinence and, through the aid of sup-    cal dependency.
portive counseling, the continuance of a drug-free life style.                   3. Needs and Benefits:
      (2) Methadone detoxification means a treatment procedure using             Research supports that opioid addiction is a chronic illness that can be
methadone, or any of its derivatives, or other approved agents, adminis-      treated effectively with medications when administered under conditions
tered in decreasing doses over a limited period of time for the purpose of    consistent with their pharmacological efficacy and when treatment
detoxification from opiates.                                                  includes necessary supportive services such as psychosocial counseling,
   (b) Methadone clinic means a single location at which a methadone          treatment for co-occurring disorders, medical services and when appropri-
program provides methadone, or other approved agent and rehabilitative        ate vocational rehabilitation (CSAT, 2001). Medication assisted treatment
services to patients.                                                         can be effective in facilitating recovery from opioid addiction for many
                                                                              patients.
This notice is intended to serve only as an emergency adoption, to be            Approximately 40,000 patients, who represent 36% of patients cur-
valid for 90 days or less. This rule expires January 5, 2009.                 rently being served in addiction treatment, are in opioid treatment
Text of rule and any required statements and analyses may be obtained         programs in New York State. OASAS Part 828 regulations were written
from: Patricia Flaherty, Associate Counsel, OASAS, 1450 Western Ave-          more than 24 years ago and have not been revised despite the fact that
nue, Albany, New York 12203, (518) 485-2317, email:                           SAMHSA promulgated an amendment to the rules in 2003 that allowed
patriciaflaherty@oasas.state.ny.us                                            opioid treatment programs to offer Buprenorphine treatment along with
Regulatory Impact Statement                                                   methadone. The proposed emergency regulation would allow chemo-
   The proposed emergency revision to Part 828 - Requirements for the         therapy programs to provide Buprenorphine for the maintenance or
operation of chemotherapy substance abuse programs will revise metha-         detoxification treatment of dependence on opioids such as heroin or pre-
done regulations that have existed for 24 years without change. The           scription pain relievers. Consistency between Federal and State regula-
amendment to the definitions of Part 828 are being adopted by emergency       tions is a benefit to providers.
because the need to allow alternative chemotherapy options to methadone          In addition, New York State law currently allows Buprenophine to be
clinics is in the interest of the publics health, safety and welfare.         administered by physicians in their private practices in addition to OTP
   Opioid addiction is a chronic illness which can be treated effectively     clinics. However, the current OASAS regulation Part 828 does not permit

                                                                                                                                                           7
Rule Making Activities                                                                                        NYS Register/October 29, 2008
Buprenophrine administration. Buprenorphrine treatment for opioid de-                Minimizing Adverse Impact: Part 828 has been carefully reviewed to
pendence is well served in the OTP setting, since clients will receive ad-        ensure minimum adverse impact to providers. Any impact this rule may
ditional services such as counseling, toxicology and medical support. The         have on small businesses and the administration of State or local govern-
proposed emergency revision will address this problem and patients will           ment, will either be a positive impact or the minimal costs for materials
benefit from this added service.                                                  and compliance are so small that they will be absorbed into the already
    4. Costs:                                                                     existing economic structure.
    Additional costs are expected to be minimal. Any costs incurred by               Small Business and Local Government Participation: These amend-
providers or the State will be offset by better treatment outcomes and            ments were adopted on an emergency basis.
healthier patients, which will result in lower costs for medical and other        Rural Area Flexibility Analysis
services.
    a. Costs to regulated parties:                                                A rural flexibility analysis is not provided since these proposed regula-
    Regulated parties include patients and providers of substance abuse           tions would have no adverse impact on public or private entities in rural
services. Patients should not incur additional costs as Buprenorphine is          areas. The majority of Methadone providers are located in NYC. There are
covered by Medicaid. Cost to providers remains the same.                          a few others upstate, but they are in cities, of various sizes. There are only
    There should be no additional costs for materials.                            three providers located in Ulster, Broome and Montgomery which may be
    b. Costs to the agency, state and local governments:                          considered a rural area however they are in towns where the density is
    OASAS is not expected to see increased cost related to administering          greater than 150 people per square mile. The compliance, recordkeeping
the rule. The decision to provide buprenorphine is voluntary, and the cur-        and paperwork requirements are the minimum needed to insure compli-
rent Part 828 methadone clinics will not be forced to provide it. There will
be anticipated cost increases for state and local governments due to the          ance with state and federal requirements and quality patient care.
weekly rate of Bupenorphine which is $ 235.00 and the difference of a             Job Impact Statement
weekly rate for Methadone of $136.02. In addition, providers may need             The implementation of emergency regulation Part 828 will have a minimal
some addition staffing for the induction phase of Buprenophine. However,          impact on jobs in that it may require some additional staffing during the
it is important to realize that the number of people treated is not changing      induction phase of Buprenorphine. This regulation will not adversely
only their options about treatment. Patients may opt to be placed on
Buprenorphine while receiving other services such as toxicology testing           impact jobs outside of the agency.
and counseling whereas Medicaid patients who opt for Bupenorphine
treatment at physicians offices do not receive the benefit of these ad-
ditional services. There will be no additional costs to counties, cities,
towns or local districts.                                                                  Department of Correctional
    5. Local Government Mandates:
    There are no new mandates or administrative requirements placed on                             Services
local governments.
    6. Paperwork:
    Amended Part 828 regulations would not change the paperwork cur-                               PROPOSED RULE MAKING
rently required.
    7. Duplication:                                                                               NO HEARING(S) SCHEDULED
    There is no duplication of other state or federal requirements.
    8. Alternatives:                                                              Officials of State Correctional Facilities
    The only other alternative is to keep the existing regulation in place.
This would be detrimental to both the opioid treatment providers and              I.D. No. COR-44-08-00003-P
patients being served. The only other alternative is to keep the existing
regulation in place. This would be detrimental to both the opioid treatment       PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
providers and patients being served.                                              cedure Act, NOTICE is hereby given of the following proposed rule:
    9. Federal Standards:                                                         Proposed Action: This is a consensus rule making to repeal section
    The CSAT Federal regulations preserve States' authority to regulate           50.1(e),(q),(w) and (cc), add section 50.1(n) and amend section 50.1(i) of
OTPs. The Federal regulations are considered minimal and the States are           Title 7 NYCRR.
authorized to determine appropriate additional regulations. Federal regula-
tions for dispensing Bupenorphine in opioid treatment programs are more           Statutory authority: Correction Law, section 112; Criminal Procedure
restrictive than minimal Federal regulations for dispensing in physicians.        Law, sections 1.20, subd. 33 and 2.10, subd. 25
In support of reducing opioid dependence it is demonstrated that there are        Subject: Officials of State Correctional Facilities.
numerous benefits which include improved retention in treatment for               Purpose: To accurately update the listing of designated officials in section
patients, making OTP's more attractive to new patients, and giving                50.1, 7 NYCRR.
patients more control over their treatment experience. In addition, patient       Text of proposed rule: The Department of Correctional Services repeals
quality of life may be improved through the reduction in daily attendance         and reserves sections 50.1(e), (q), (w) and (cc) of 7NYCRR. Additionally,
at an OTP clinic.                                                                 section 50.1(i) is amended as indicated below and section 50.1(n) is added
    10. Compliance Schedule:                                                      as indicated below.
    It is expected that full implementation of Part 828 will be completed
within three months of the adoption of the regulation.                               Section 50.1 Definition.
Regulatory Flexibility Analysis                                                      For the purposes of Criminal Procedure Law, section 1.20, subdivi-
    Effect of the Rule: The proposed amendments to Part 828 will impact           sion 33, and section 2.10, subdivision 25, the following are hereby
certified and or funded providers. It is expected that the amendment of the       designated as officials of State correctional facilities:
methadone regulation will result in better patient care. Local Government            (a) the commissioner;
will not be effected by the rule. Business that provide Buprenorphine may
benefit from increased sales of the drug because of a wider distribution.            (b) executive deputy commissioner;
    Compliance Requirements: Providers will document the use of Bur-                 (c) deputy commissioner;
prenorphine in compliance with federal standards. This rule is voluntary             (d) associate commissioner;
and does not place any additional requirements on small businesses or lo-
cal governments. It is not expected that there will be significant changes in        (e) [assistant deputy commissioner;] Reserved
compliance requirements. Since providers are already required to provide             (f) assistant commissioner;
utilization review, it is not expected that this regulation, will have signifi-
cant additional costs.                                                               (g) superintendents;
    Professional Services: it is not expected that programs will need to uti-        (h) deputy superintendents;
lize additional professional services.                                               (i) chief of [correction audit] investigations;
    Compliance Costs: No additional costs are expected. This rule is volun-
tary, therefore compliance is not mandatory.                                         (j) correctional services investigators;
    Economic and Technological Feasibility: The economic and technologi-             (k) correction captains;
cal feasibility of compliance with this voluntary rule by small businesses           (l) correction lieutenants;
and local governments is such that the implementation may require certain
businesses to increase their sale and production of Buprenorhine in order            (m) correction sergeants;
to comply with the demand for the drug.                                              (n) assistant chief of investigations;

8
NYS Register/October 29, 2008                                                                                         Rule Making Activities

   (o) assistant deputy superintendents;                                                                       PART 6150
   (p) community correction center assistants;                                 AVAILABILITY OF RECORDS [FOR PUBLIC INSPECTION AND
   (q) [assistant directors of community correctional centers;] Reserved                                       COPYING]
                                                                                Section 6150.1. Purpose. The purpose of this Part is to set forth the
   (r) facility operations specialists;                                      [methods and] procedures governing the availability[, location, and nature]
   (s) [Reserved]                                                            of [those] records of the Division of Criminal Justice Services [subject]
   (t) coordinator, correctional services employee investigations;           pursuant to the provisions of article 6 of the Public Officers Law, known
   (u) employee investigators;                                               as the Freedom of Information Law.
   (v) senior employee investigators;                                           Section 6150.2. Definitions. For the purposes of this Part:
                                                                                (a) The term DCJS means the Division of Criminal Justice Services.
   (w) [project coordinators of community contract facility programs;]          (b) Record or records means any information kept, held, filed, produced
Reserved                                                                     or reproduced by, with or for an agency or the State Legislature, in any
   (x) correction officers assigned to a training academy in the depart-     physical form whatsoever, including but not limited to reports, statements,
ment or the central office of the department;                                examinations, memoranda, opinions, folders, files, books, manuals,
   (y) the director of the Correction Emergency Response Team                pamphlets, forms, papers, designs, drawings, maps, photos, letters,
(C.E.R.T.);                                                                  microfilms, computer tapes or discs, rules, regulations or codes.
   (z) first deputy superintendent;                                             (c) [The term statistical tabulation means a collection or orderly presen-
                                                                             tation of numerical data logically arranged in columns and rows or
   (aa) director and assistant director of special housing and inmate        graphically.
disciplinary procedures;                                                        (d) The term factual tabulation means a collection of statements of
   (bb) institution safety officers;                                         objective information logically arranged which is empirically derived and
   (cc) [confidential assistant;] Reserved                                   reflects objective reality, actual existence or an actual occurrence.
Text of proposed rule and any required statements and analyses may be           (e) The term workday means any day except Saturday, Sunday, a public
obtained from: Anthony J. Annucci, Executive Deputy Commissioner,            holiday or, with respect to a particular office of DCJS, a day on which that
New York State Department of Correctional Services, 1220 Washington          office is otherwise closed for regular business.
Avenue - Building 2 - State Campus, Albany, NY 12226-2050, (518) 457-           (f)] The term commissioner means the Commissioner of the Division of
4951, email: AJAnnucci@DOCS.state.ny.us                                      Criminal Justice Services.
Data, views or arguments may be submitted to: Same as above.                    [(g)] (d) The term records access officer means the [associate public in-
Public comment will be received until: 45 days after publication of this     formation specialist and/or any other employees] employee designated by
notice.                                                                      the commissioner to receive and respond to inquiries [to inspect or copy
                                                                             records maintained by DCJS] made pursuant to the Freedom of Informa-
Consensus Rule Making Determination                                          tion Law.
   The Department of Correctional Services has determined that no               [(h) The term fiscal officer means the administrative officer of DCJS
person is likely to object to the proposed actions because they make         and/or any other employee designated by the commissioner to certify the
technical changes that are non-controversial. See SAPA § 102(11)(c).         DCJS payroll.]
   7 NYCRR 50.1 is a listing of employee job titles that are designated         Section 6150.3. [Nature of records] Records available to the public.
by the Commissioner as officials of State correctional facilities. The       [Subject to the exceptions set forth in section 6150.4 of this Part, all] All
Department’s authority to promulgate this regulation resides in sec-         records maintained by DCJS shall be available [for public inspection and
tion 112 of correction Law, which provides for the Commissioner to           copying.] to the public pursuant to the Freedom of Information Law and
appoint and remove, subject to civil service law and rules, subordinate      DCJS may deny access to records or portions of records only in accor-
officers and other employees of the department who are assigned to           dance with section eighty-seven of the Public Officers Law. [These shall
                                                                             include but not be limited to:
correctional facilities. Additionally, § 1.20, subdivision 33, and § 2.10,
                                                                                (a) Final opinions and orders made in the adjudication of cases;
subdivision 25 of Criminal Procedure Law provide for the Commis-                (b) Statements of policy and interpretations which have been adopted
sioner to designate persons as “Peace officers” pursuant to the rules of     by DCJS and any statistical or factual tabulations which led to the formula-
the department.                                                              tion thereof;
Job Impact Statement                                                            (c) Minutes of public meetings of any public boards or committees and
A job impact statement is not submitted because this proposed rule will      any final determinations and dissenting opinions of their members, includ-
have no adverse impact on jobs or employment opportunities.                  ing a record of the final votes of each member of the governing body;
                                                                                (d) Minutes of public hearings held by DCJS;
                                                                                (e) Internal or external audits and statistical or factual tabulations made
                                                                             by or for DCJS;
         Division of Criminal Justice                                           (f) Administrative staff manuals and instructions to staff that affect
                                                                             members of the public;
                   Services                                                     (g) An itemized payroll record for DCJS, indicating the name, business
                                                                             address, title, and salary of every officer or employee of DCJS, except that
                                                                             in the case of law enforcement employees the record shall indicate the title
                 PROPOSED RULE MAKING                                        and salary only; and
                NO HEARING(S) SCHEDULED                                         (h) Any other files, records, papers or documents required by any other
                                                                             provision of law to be made available for public inspection.
Availability of Records                                                         Section 6150.4. Records exempt from disclosure. Notwithstanding the
                                                                             provisions of section 6150.3 above, the following types of records shall be
I.D. No. CJS-44-08-00018-P                                                   exempt from public inspection and/or copying:
                                                                                (a) Records which are specifically exempt from disclosure by State or
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                  Federal statute;
cedure Act, NOTICE is hereby given of the following proposed rule:              (b) Records constituting information the disclosure of which would
                                                                             result in an unwarranted invasion of personal privacy. An unwarranted
Proposed Action: This is a consensus rule making to amend Part 6150 of
Title 9 NYCRR.                                                               invasion of personal privacy shall include, but not be limited to:
                                                                                   (1) disclosure of such personal matters as may have been reported in
Statutory authority: Public Officers Law, section 87(1)(b); Executive        confidence to DCJS or any other State or local agency or municipality,
Law, section 837(13)                                                         and the publication of which is not relevant or essential to the ordinary
Subject: Availability of records.                                            work of DCJS;
Purpose: Update provisions regarding availability of Divisions records.            (2) disclosure of employment, medical or credit histories or personal
Text of proposed rule: 1. Part 6150 of title 9 NYCRR is amended as           references of applicants for employment, unless the applicant has provided
follows:                                                                     a written release permitting such disclosure;

                                                                                                                                                         9
Rule Making Activities                                                                                           NYS Register/October 29, 2008
       (3) disclosure of items involving the medical or personal records of a          (c) Processing of request. Completed forms may be submitted to the re-
client or patient in a hospital or medical facility;                                cords access officer personally on any workday between the hours of 9:30
       (4) the sale or release of lists of names and addresses in possession of     a.m. and 4 p.m. Upon receipt of such a request, on the proper form and at
any agency or municipality if such lists are to be used for private, com-           the appropriate time, the records access officer shall notify the applicant
mercial or fund-raising purposes;                                                   of one of the following results:
       (5) disclosure of items of a personal nature which would result in                 (1) that the record requested is available for inspection at a specified
economic or personal hardship to the subject party and when the publica-            time and place;
tion of such records is not relevant or essential to the ordinary work of                 (2) when requested, and upon payment of the appropriate fee as
DCJS; and                                                                           prescribed in section 6150.8 of this Part, that a copy of the record will be
       (6) disclosure of information contained in the criminal history file,        provided to the applicant;
license and employment file and wanted and missing persons file,                          (3) that the record requested is not in his custody, does not exist, is in
maintained by DCJS, including any and all information contained in such             the custody of another specified agency or has been lost; or
files;                                                                                    (4) that access to the record is denied as provided in section 6150.10
   (c) disclosure of information which if disclosed would impair present or         of this Part.
imminent contract awards or collective bargaining negotiations;                        (d) Time for processing request. All requests shall be fully processed by
   (d) disclosure of information which constitutes trade secrets or                 the records access officer at the earliest possible time. In view of the time
maintained for the regulation of commercial enterprise and would cause              required to conduct record searches, locate and copy certain information,
substantial injury to the competitive position of the subject enterprise;           DCJS reserves the right to respond to inquiries or shall furnish a written
   (e) Investigatory files compiled for law enforcement purposes, includ-           acknowledgment of receipt of the request and a statement of the ap-
ing administrative and criminal law enforcement proceedings, and other              proximate date when the request will be granted or denied within five
information related to the operations of criminal justice agencies that are         working days of receiving the request. If access to records is neither
sensitive or confidential to such a degree that disclosure would not be in          granted nor denied within 10 business days after the date of acknowledg-
the interest of the public, in that disclosure would interfere with law             ment of receipt of a request, the record may be construed as a denial of ac-
enforcement investigations or judicial or administrative proceedings,               cess that may be appealed.
deprive a person of the right to a fair trial or impartial adjudication, identify
a confidential source or disclose confidential information relating to a               (e) Waiver of procedures. The records access officer may at his or her
criminal investigation or reveal criminal investigative techniques or               discretion waive any formality prescribed by this section, including the
procedures;                                                                         use of application forms prescribed by such officer.
   (f) Preliminary or interim communications related to the DCJS decision              Section 6150.7. Itemized payroll records. The fiscal officer of DCJS
making process, including but not limited to opinions, interpretations and          shall be the custodian of the itemized payroll records of DCJS. Any bona
evaluations prepared by staff or consultants which are not:                         fide member of the news media wishing to inspect and/or obtain a copy of
       (1) statistical or factual tabulations;                                      such itemized payroll record may apply to the fiscal officer by appearing
       (2) instructions to staff that affect the public; or                         in person on any workday between the hours of 9:30 a.m. and 3 p.m. at the
       (3) final agency policy or determinations;                                   DCJS Albany offices. Upon receipt of such an application at the appropri-
   (g) Record of deliberations of any public boards or committees while in          ate time and on the proper form prescribed by the New York State
executive session.]                                                                 Comptroller, and upon production by such member of appropriate
   Section [6150.5.] 6150.4 List of records. [On behalf of DCJS, the] The           identification, the fiscal officer shall produce the payroll record for
records access officer shall maintain and make available for public inspec-         inspection. Upon request, the fiscal officer shall provide the member with
tion and copying a reasonably detailed current list by subject matter of all        a copy of the payroll record.]
records in the possession of DCJS, whether or not available under the                  Section [6150.8] 6150.6. [Fee for copies of records] Fees. (a) [Except
Freedom of Information Law. [current list, by subject matter, of the types          when a different fee is otherwise prescribed by law, there] There shall be
of records produced, filed, or first kept by DCJS whether or not available          no fee charged for the following:
under this act. Such lists shall be in conformity with such regulations as                (1) inspection of records;
may be promulgated by the State Committee on Public Access to Records.]                   (2) search for records; or
   Section [6150.6] 6150.5. Procedures for obtaining access to records.                   (3) any certification pursuant to section 89 of the Public Officers Law
[All requests for access to records maintained by DCJS, other than an               [this Part].
itemized payroll record, shall be processed as follows.]                               (b) The fee for photocopies of records shall be 25 cents per page not
   (a) [Place of request.] Any person wishing to inspect and/or [copy]              exceeding 9 by 14 inches in size or the actual cost of reproducing any
obtain copies of any record [, other than a payroll record, may apply at one        other record, except when a different fee is otherwise prescribed by statute.
of the following locations:                                                         [The fees for other types of copies shall be such amount as the commis-
       (1) Albany. Records Access Officer, New York State Division of               sioner shall establish which shall not exceed the actual reproduction cost.]
Criminal Justice Services, Executive Park Tower, Stuyvesant Plaza, 5th                 (c) Notwithstanding the above, the commissioner may, in his or her
floor, Albany, N.Y. 12203.                                                          discretion, waive any or all portion of the fees authorized by this section
       (2) New York City. Records Access Officer, New York State Divi-              for copies of any record or class of records.
sion of Criminal Justice Services, 80 Centre Street, 4th floor, New York,              Section [6150.9] 6150.7. Trade secrets and critical infrastructure
N.Y. 10013] shall submit a written request identifying the record                   information. A person acting pursuant to law or regulation who submits
requested with reasonable particularity via landmail, facsimile, or e-mail          information to DCJS may request that DCJS except such information from
to:                                                                                 disclosure on the grounds that such information constitutes trade secrets
       Records Access Officer                                                       or disclosure would cause substantial injury to the competitive position of
       NYS Division of Criminal Justice Services                                    the subject enterprise which submitted the information. Such requests
       4 Tower Place                                                                shall be submitted and determined in accordance with subdivision 5 of
       Albany, NY 12203-3764                                                        section 89 of the Public Officers Law. [Deletion of information. In accor-
       FAX: (518) 457-2416                                                          dance with the provisions of subdivision 2 of section 89 of the Public Of-
       E-mail: foil@dcjs.state.ny.us                                                ficers Law, section 6150.4 of this Part, and in conformance with such
   (b) Within five business days of receipt of a request, the records access        guidelines as may be promulgated by the State Committee on Public Ac-
officer shall:                                                                      cess to Records, prior to making a record available for public inspection
       (1) make such record available to the person requesting it;                  and/or copying, the records access officer may delete from it any identify-
       (2) deny such request in writing; or                                         ing details the disclosure of which would result in an unwarranted inva-
       (3) furnish a written acknowledgement of the receipt of such request         sion of personal privacy. In the event that one or more deletions are so
and a statement of the approximate date, which shall be reasonable under            made, the records access officer shall give notice of that fact to the person
the circumstances of the request, when such request will be granted or              given access to the record. If the record is such that the personal matters
denied.                                                                             cannot be fully deleted without substantively affecting the record or the
   [Form of request. All requests for access shall be in writing on a form          identifying details cannot be deleted effectively, the records access officer
prescribed by the records access officer, identifying the record requested          shall deny access to such record as provided in section 6150.10 of this
with reasonable particularity. Blank forms may be obtained from the re-             Part.
cords access officer either personally on any workday, or by mail ad-                  Section 6150.10. Grant or denial of access to records. If the records ac-
dressed to such office.                                                             cess officer determines that an application to inspect and/or copy records

10
NYS Register/October 29, 2008                                                                                           Rule Making Activities
pertains to information required to be disclosed under section 6150.3 of
this Part and is not otherwise exempt from disclosure under section 6150.4
of this Part, he shall grant the application. If the records access officer
                                                                                            Department of Economic
determines that an application to inspect and/or copy records pertains to                        Development
other information not exempt under section 6150.4 of this Part, he shall
grant the application unless he determines that to do so would adversely
affect the public interest. If the records access officer determines that an                                EMERGENCY
application to inspect and/or copy records pertains to information specifi-                                RULE MAKING
cally exempt under section 6150.4 of this Part he shall deny such
application. In denying an application, the records access officer shall         Empire Zones Reform
indicate his reason for such denial and shall advise the applicant of his
right to appeal such denial to the commissioner.]                                I.D. No. EDV-44-08-00006-E
                                                                                 Filing No. 1006
                                                                                 Filing Date: 2008-10-09
   Section [6150.11] 6150.8. Appeals. Any person [whose application to
inspect and/or copy records has been denied pursuant to section 6150.10          Effective Date: 2008-10-09
of this Part] denied access to a record may appeal such denial within 30
days of such denial to: Deputy Commissioner and Counsel, Office of Legal         PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
Services, 4 Tower Place, Albany, NY 12203. [the commissioner at 80               cedure Act, NOTICE is hereby given of the following action:
Centre Street in New York City.] Such appeal must be in writing [on a            Action taken: Amendment of Parts 10 through 14 of Title 5 NYCRR.
form prescribed by DCJS] and shall set forth [:] the name and address of         Statutory authority: General Municipal Law, art. 18-B, section 959
the applicant; the specified record(s) requested; the date of the denial; [the   Finding of necessity for emergency rule: Preservation of general welfare.
reasons given for the denial;] and other evidence the applicant deems            Specific reasons underlying the finding of necessity: The Empire Zones
pertinent. The [commissioner] Deputy Commissioner and Counsel shall,             Program reforms as enacted by Chapter 63 of the Laws of 2005 were
[upon receipt of a written appeal, immediately review the matter and af-         designed to improve the cost-effectiveness and accountability of the
firm, modify or reverse the denial. If the commissioner affirms or modi-         program for all New Yorkers. However despite these reforms, the program
fies the denial he shall,] within [seven] ten business days of the receipt of    continues to grow at a rate that is unsustainable and benefits some
the appeal [: (a) communicate his reasons for such affirmation or modifica-      companies that do not meet their job commitments. In some cases, the tax
tion to the person making the appeal] either fully explain in writing to the     benefits a company receives exceed the economic return to the State.
                                                                                 Prudent financial management of this and all public programs is an imper-
person requesting the record the reasons for further denial or provide ac-       ative at all times but even more important when the State is experiencing
cess to the records sought. [; and (b) inform such person of his right to ap-    fiscal difficulties. Additional regulatory action is needed immediately to
peal such affirmation or modification under article 78 of the Civil Practice     protect the integrity of the program, enhance its strategic focus, improve
Law and Rules.] Copies of all appeals and determinations of those appeals        its cost-effectiveness, increase accountability, and mitigate the impact on
[will be transmitted] shall immediately be forwarded to the [State] Com-         the General Fund.
mittee on [Public Access to Records] Open Government, Department of                 One area of particular concern relates to regionally significant
State, [162] One Commerce Plaza, 99 Washington Avenue, Albany, New               projects. Regionally significant projects should be limited to those
York 12231.                                                                      businesses that would have the most significant economic impact for
                                                                                 local communities and the State by restricting eligibility to projects
   Section [6150.12] 6150.9. Severability. If any provision of this Part or      that export a substantial amount of their goods or services to custom-
the application thereof to any person or circumstance is adjudged invalid        ers outside of New York State. These “export” type of projects ensure
by a court of competent jurisdiction, such judgment shall not affect or          that net new economic activity will be created in the State versus
impair the validity of the other provisions of this Part or the application      simply redistributing economic activity between different communi-
thereof to other persons and circumstances.                                      ties of the State, or providing incentives for projects where such incen-
                                                                                 tives are not necessary to create or retain jobs.
                                                                                    To increase accountability, job creation for regionally significant
Text of proposed rule and any required statements and analyses may be            projects would have to occur in a timely manner. The timeframe for
obtained from: Mark Bonacquist, Division of Criminal Justice Services, 4         achieving job targets would be reduced from five to three years. This
Tower Place, Albany, NY 12203, (518) 457-8413                                    change would make firms more accountable for job creation by reduc-
                                                                                 ing the incentive for companies to inflate job numbers knowing they
Data, views or arguments may be submitted to: Same as above.                     have five years of zone benefits in which to achieve their goals.
                                                                                    Participation would also be limited to companies that provide a
                                                                                 greater economic return on the State’s investment in order to improve
Public comment will be received until: 45 days after publication of this         the cost-effectiveness of the Program. A statewide standard would be
notice.                                                                          adopted based on the cost-benefit factors defined in law. Specifically,
                                                                                 there would need to be twenty dollars of economic development
Consensus Rule Making Determination                                              benefits in the form of wages and capital investments for every one
This proposal updates the Division's procedures regarding the availability       dollar of tax credits a business would receive. For projects where the
of records pursuant to the Freedom of Information Law (FOIL). The revi-          economic development benefits are justified based on non-quantitative
sions made by the proposal are in conformity with the requirements of            factors, there would need to be at least five dollars of such benefits for
FOIL, and update the procedures for requesting records to conform with           every one dollar of tax credits. In addition, the non-quantifiable terms
current practice. Accordingly, the Division believes this proposal imple-        identified in the law for strategic industry cluster or its supply chain
ments non-discretionary provisions of the FOIL, makes technical changes,         would be defined to ensure that only businesses that are truly part of a
and is otherwise non-controversial. As such, no person is likely to object       strategic industry cluster or its supply chain can qualify based on the
to the adoption of this rule as written.                                         non-quantifiable factors of the cost-benefit analysis.
                                                                                    In order to hold businesses more accountable for their commitments
                                                                                 and realize annual savings in program costs, these regulatory changes
Job Impact Statement                                                             need to be adopted immediately. With 82 empire zones statewide,
This proposal updates the Division's procedures regarding the availability       10-20 applications are being submitted to the State weekly. Once busi-
of records pursuant to the Freedom of Information Law. As such, it is ap-        nesses are in the Program, the annual costs are borne by the State for a
parent from the nature and purpose of the proposal that it will have no          10 year period. These changes are expected to immediately reduce the
impact on jobs and employment opportunities.                                     number of eligible applicants by about 30% in order to achieve the

                                                                                                                                                        11
Rule Making Activities                                                                                         NYS Register/October 29, 2008

objectives of strategic focus, improved cost-effectiveness, greater ac-           statutory amendments that the counties place a substantial portion of the
countability and ultimately help preserve the program during the im-              zone acreage within eligible or contiguous census tracts, and this provi-
mediate fiscal crisis and beyond.                                                 sion follows essentially the same method for concentrating acreage within
                                                                                  distressed areas as the General Municipal Law employed for census tract
Subject: Empire Zones reform.                                                     zones.
Purpose: To continue implementing previous reforms and adopt changes                 Fifth, the emergency rule tracks the statutory requirements that zones
that would enhance its strategic focus.                                           reconfigure their existing acreage in up to three (for investment zones) or
Substance of emergency rule: The emergency rule is the result of changes          six (for development zones) distinct and separate contiguous areas, and
to Article 18-B of the General Municipal Law pursuant to Chapter 63 of            that zones can allocate up to their total allotted acreage at the time of
the Laws of 2005, as well as a comprehensive review of administrative             designation. These reconfigured zones must be presented to the Empire
procedures and existing regulations for the purpose of making the program         Zones Designation Board for unanimous approval. The emergency rule
more strategic, cost effective and accountable to taxpayers. The amended          makes clear that zones may not necessarily designate all of their acreage
laws require the existing Empire Zones to identify revised zone                   into three or six areas or use all of their allotted acreage, however, any
boundaries-that is, placement of zone acreage into ‘‘distinct and separate        subsequent additions after their official redesignation by the Designation
contiguous areas’’-which has not yet been completed. The existing regula-         Board will still require unanimous approval by that Board.
tions fail to address this requirement, and at the same time, contain several        Sixth, the emergency rule clarifies the new statutory requirement that
outdated references. The proposed regulations will correct these two items        certain defined ‘‘regionally significant’’ projects can be located outside of
and improve the program's administrative procedures. The Empire Zone              the new distinct and separate contiguous areas. There are four categories
regulations contained in 5 NYCRR Parts 10 through 14 are hereby                   of projects identified in Chapter 63; only one category of applications,
amended as follows:                                                               manufacturers projecting the creation of 50 or more jobs, are allowed to
   First, pursuant to Chapter 63 of the Laws of 2000 and Chapter 63 of the        progress before the identification of the distinct and separate contiguous
Laws of 2005, the emergency rule would reflect the name change of the             areas and/or the approval of certain regulations by the Empire Zones
program from Economic Development Zones to the Empire Zones and                   Designation Board. Such projects must be projects that are exporting a
add reference to three new tax benefits: the Qualified Empire Zone                substantial amount of goods or services beyond the State. The emergency
Enterprise (‘‘QEZE’’) Real Property Tax Credit, QEZE Tax Reduction                rule identifies a timetable for meeting the minimum job creation
Credit, and the QEZE Sales and Use Tax Exemption. The emergency rule              requirement: 100% of the minimum jobs required to meet the definition of
also reflects the eligibility of agricultural cooperatives for Empire Zone        regionally significant project within 3 years of the date of designation of
tax credits and the QEZE Real Property Tax Credit.                                the project as regionally significant. Failure to achieve the minimum job
   Second, the emergency rule would conform the regulations to existing           creation requirement would trigger a decertification process.
statutory terminology, definitions and practices. For example, an incorrect          Seventh, the emergency rule elaborates on the ‘‘demonstration of need’’
reference to a local empire zone administrator is being corrected to read         requirement mentioned in Chapter 63 of the Laws of 2005 for the addition
local empire zone certification officer or simply, the local empire zone, if      (for both investment and development zones) of an additional distinct and
applicable. Pursuant to statute, the chief executive officer must ensure that     separate contiguous area. A zone can demonstrate the need for a fourth or,
the information on a designation application is accurate and complete, not        as the case may be, a seventh distinct and separate contiguous area if (1)
the local legislative body. The requirements for a shift resolution did not       there is insufficient existing or planned infrastructure within the three (or
contain all the criteria as set forth in statute. Certain regulatory provisions   six) distinct and separate contiguous areas to (a) accommodate business
regarding application for zone designation were not in accord with the            development and there are other areas of the applicant municipality that
statute, such as whether certain information must be contained in local law       can be characterized as economically distressed and/or (b) accommodate
rather than the application itself. In addition, tracking the statutory changes   development of strategic businesses as defined in the local development
from Chapter 63 of the Laws of 2005, census tract zones are renamed               plan, or (2) placing all acreage in the other three or six distinct and sepa-
‘‘investment zones’’, county-created zones are renamed ‘‘development              rate contiguous areas would be inconsistent with open space and wetland
zones’’, and the new term ‘‘cost-benefit analysis’’ is defined. The emer-         protection, or (3) there are insufficient lands available for further business
gency regulation also tracks the amended statute's deletion of the category       development within the other distinct and separate contiguous areas.
of contributions to a qualified Empire Zone Capital Corporation from                 Eight, the emergency rule clarifies Chapter 63's permission for zone-
those businesses eligible for the Zone Capital Credit.                            certified businesses which will be located outside of the distinct and sepa-
   Third, the emergency rule would amend the Department's discretionary           rate contiguous areas to receive zone benefits until decertified. The area
provision that limits the designation of nearby lands in investment zones         which will be ‘‘grandfathered’’ shall be limited to the expansion of the
to 320 acres. Such regulatory limitations are arbitrary and unnecessarily         certified business within the parcel or portion thereof that was originally
exceed or are inconsistent with State statute, and at the same time place         located in the zone before redesignation. Each zone must identify any
undue limits on the reconfiguration of zones; municipalities cannot ef-           such business by December 30, 2005.
fectively utilize zone acreage to create opportunities for business invest-          Ninth, the emergency rule tracks Chapter 63's requirement that new
ment and job growth in economically distressed areas that are not neces-          zone development plans, created in the conjunction with the new distinct
sarily located in eligible or contiguous census tracts. At the same time, the     and separate contiguous areas to be approved by the Empire Zones
Department is required to provide guidance in regulation on placement of          Designation Board, are to be approved by the Department within 90 days
nearby zone lands, and cannot countenance abuse of the program's                  of submission. The emergency rule defines the date of submission for
requirements on acreage placement. Thus, placement of nearby lands can            each zone as the date of approval of the distinct and separate contiguous
exceed 320 acres provided that the municipality demonstrates that (1)             areas by the Empire Zones Designation Board.
there is insufficient existing or planned infrastructure within eligible or          Tenth, the emergency rule fulfills the requirements of Chapter 63 to
contiguous tracts to accommodate business development in a highly                 subject all businesses applying for zone benefits to meet a ‘‘cost-benefit
distressed area, or to accommodate development of strategic businesses or         analysis’’. The cost-benefit analysis is to be included in the zone develop-
(2) placing up to 960 acres in eligible or contiguous census tracts would be      ment plan by the applicant municipality. The definition included in the
inconsistent with open space and wetland protection or (3) there are insuf-       emergency rule establishes a minimum economic development benefit to
ficient lands available for further business development within eligible or       cost ratio of 20:1 for a project to be eligible for certification. A project that
contiguous census tracts or (4) lands previously designated in the eligible       does not meet the 20:1 ratio but can be justified based on non-quantifiable
or contiguous census tracts that were otherwise suitable for development          factors must meet a minimum ratio of 5:1. In addition, definitions for stra-
and have not had any appreciable commercial activity or capital invest-           tegic industry cluster and supply chain are included in the rule.
ment or (5) changes to eligible census tracts as a result of the 2000 Census,        Eleventh, the emergency rule clarifies the status of community develop-
combined with the requirement in the amended statute that the distinct and        ment projects as a result of the reconfiguration of the zones pursuant to
separate contiguous areas accommodate already designated lands, alter             Chapter 63. The current regulations require the community development
the amount of nearby acreage used and available for development.                  projects to be located in an Empire Zone in order for investments in those
   Fourth, the emergency rule clarifies the statutory requirement from            projects to qualify for tax benefits. Drawing distinct and separate contigu-
Chapter 63, L. 2005 that development zones (formerly county zones) cre-           ous areas around community development projects would severely limit
ate up to three areas within their reconfigured zones as investment               the ability of Empire Zones to include as many eligible businesses as pos-
(formerly census tract) zones. The rule would require that 75% of the             sible into the new distinct and separate contiguous areas. Community
acreage used to define these investment zones be included within an               development projects are not necessarily required to be certified. There is
eligible or contiguous census tract. Furthermore, the rule would not require      a strong public policy preference for these projects and there is an expecta-
a development zone to place investment zone acreage within a municipal-           tion by their sponsors that they continue to offer tax credits to contributors
ity in that county if that particular municipality already contained an           until fundraising for the projects are completed. To that end, all com-
investment zone, and the only eligible census tracts were contained within        munity development projects approved by the Department before April 1,
that municipality. The purpose of this is to fulfill the intent of the new        2005 would be considered to be located within its respective Empire Zone,

12
NYS Register/October 29, 2008                                                                                        Rule Making Activities
and a community development project will be considered to be located in       more paperwork and additional staff time and will continue even more
the Empire Zone if it can demonstrate that a zone has been working with       so as regulatory changes add additional scrutiny to the review and
the project before April 1, 2005 for the purpose of submitting a boundary     evaluation of projects attempting to gain eligibility into the program.
revision for inclusion in to the Zone that would include job creation.
   Twelfth, the emergency rule would revise the application process in or-       III. Costs to the State government: None. There will be no additional
der to ensure timely action and improve efficiency and accountability. For    costs to New York State as a result of the emergency rule making.
example, the proposed process would no longer require the applicant to           IV. Costs to local governments (the Local Zone administration):
submit an application to both the Department and the Department of            None. The emergency regulation will not impose any additional costs
Labor. In addition, the proposed process allows the applicant to cure         to the local zone administration beyond any additional costs associ-
incomplete or deficient applications within a set time period.
   Lastly, the emergency rule would add certain programmatic informa-         ated with implementing the statutory requirements which reform the
tion that is helpful to zone administrators, applicants, and practitioners    program. In the long term, there may be some cost savings in regards
such as the method for determining the effective dates for certifications     to staff time due to a clarification of program requirements.
and boundary revisions.                                                          LOCAL GOVERNMENT MANDATES:
   The full text of the rule is available at www.empire.state.ny.us
This notice is intended to serve only as a notice of emergency adoption.         None. Local governments are not mandated to participate in the
This agency intends to adopt this emergency rule as a permanent rule and      Empire Zones Program. If a local government chooses to participate,
will publish a notice of proposed rule making in the State Register at some   there is a cost associated with local administration. However, this
future date. The emergency rule will expire January 6, 2009.                  emergency rule does not impose any additional costs to the local
Text of rule and any required statements and analyses may be obtained         governments beyond any additional costs associated with implement-
from: Thomas P. Regan, Department of Economic Development, 30 S.              ing the statutory requirements which reform the program.
Pearl St., Albany, NY 12245, (518) 292-5123, email:                              PAPERWORK:
tregan@empire.state.ny.us
Regulatory Impact Statement                                                      The emergency rule does create additional paperwork, insofar as
                                                                              the various Empire Zones have to refile applications to reconfigure
   STATUTORY AUTHORITY:                                                       their Zone acreage, identify regionally significant projects and
   Section 959(a) of the General Municipal Law authorizes the Com-            ‘‘grandfathered’’ businesses where necessary, and process boundary
missioner of Economic Development to adopt rules and regulations              revisions before deadlines enumerated in statute which are reproduced
governing the criteria of eligibility for empire zone designation, the        verbatim from the statute.
application process, and the joint certification of a business enterprise.       DUPLICATION:
   LEGISLATIVE OBJECTIVES:                                                       The emergency rule will not duplicate or exceed any other existing
   The rulemaking accords with the public policy objectives the               Federal or State statute or regulation.
Legislature sought to advance because the majority of such revisions             ALTERNATIVES:
are in direct response to recent statutory amendments and the remain-
ing revisions conform the regulations to existing statute or clarify             No alternatives were considered with regard to amending the
administrative procedures of the program. It is the public policy of the      regulations in response to statutory revisions. Certain alternatives to
State to offer special incentives and assistance that will promote the        policies seeking to be adopted were considered in certain subject areas
development of new businesses, the expansion of existing businesses           where the Legislature provided some room for interpretation; for
and the development of human resources within areas designated as             example, acreage devoted to existing businesses outside of the
Empire Zones. The proposed amendments help to further such objec-             reconfigured zone areas, creation of investment zones within develop-
tives by enabling the Department of Economic Development to                   ment zones, the placement of ‘‘nearby’’ acreage, the location of
administer the program in a more efficient manner. In addition, these         ‘‘grandfathered’’ businesses and the continuation of community
amendments further the Legislative goals and objectives for the               development projects. In each case, interpretation was geared to
Empire Zones program, particularly as they relate to regionally signif-       preserving, to the extent possible, the expectation of benefits for exist-
icant projects and the cost-benefit analysis. With these changes, the         ing zone businesses, making zone reconfiguration as clear as possible
Department strives to make the Program more strategic, cost-effective         for existing zones, and enabling zone acreage to be utilized in the
and accountable to the taxpayers of the New York state.                       most effective manner. Finally, with regard to the application process,
                                                                              an alternative was considered to include more time for review of the
   NEEDS AND BENEFITS:                                                        application at the State level. This alternative was rejected because it
   The emergency rule is required in order to bring the regulations into      was determined that certification of a business, which has a complete
accord with statute and to improve the overall administration and ef-         and sufficient application, should not be delayed.
fectiveness of the program. There are several benefits that would be             FEDERAL STANDARDS:
derived from this emergency rulemaking. First, the emergency regula-
tions would conform to statutory provisions and thereby eliminate                There are no federal standards in regard to the Empire Zones
potential confusion to the practitioner. Second, the emergency rule           program; it is purely a state program that offers, among other things,
would clarify the application process to ensure timely action and             state and local tax credits. Therefore, the emergency rule does not
improve efficiency and accountability. Third, the rule seeks to reform        exceed any Federal standard.
the Empire Zones program to make it more cost-effective and account-             COMPLIANCE SCHEDULE:
able to the State's taxpayers, particularly in light of New York's cur-          The affected State agencies (Economic Development and Labor),
rent fiscal climate.                                                          local zone administration and the business applicants will be able to
   COSTS:                                                                     achieve compliance with the emergency regulation as soon as it is
   I. Costs to private regulated parties (the Business applicants): None.     implemented.
The emergency regulation will not impose any additional costs to the          Regulatory Flexibility Analysis
business applicants beyond the existing program. In fact, there may be        Participation in the Empire Zones Program is entirely at the discretion of
a cost savings due to a clearer application and the ability to cure ap-       each eligible municipality and business enterprise. Neither General Mu-
plication deficiencies rather than being immediately denied.                  nicipal Law Article 18-B nor the emergency regulations impose an obliga-
                                                                              tion on any local government or business entity to participate in the
   II. Costs to the regulating agency for the implementation and              program. The emergency regulation does not impose any adverse eco-
continued administration of the rule: While there will be additional          nomic impact, reporting, record-keeping, or other compliance require-
costs to the Department of Economic Development associated with               ments on small businesses and/or local governments. In fact, the emer-
the emergency rule making, this is a result of the statutory changes          gency regulations may have a positive economic impact on the small
which the emergency regulation language tracks or interprets. All             businesses and local governments that do participate due to clarifying
existing Empire Zones have to revise their boundaries as a result of          changes, the added flexibility and a new application process. The
the statutory changes, with certain exceptions tied to specific types of      administrative structure of the program was designed to offer a streamlined
business or the timing of certain applications. This has resulted in          application and approval process by extracting only essential information

                                                                                                                                                     13
Rule Making Activities                                                                                      NYS Register/October 29, 2008
from the applicants. In addition, the changes to the regulations that track        Section 188.4. Terminology is revised and the procedure for agency
changes in statute and result in a reconfiguration of zones will actually       designation of records management officers is revised.
enhance the ability of businesses yet to apply which are located in                Section 188.5. Terminology is revised.
distressed areas to receive program benefits. Local governments will have          Section 188.6. Terminology is revised.
the additional short-term burden of taking the legal and administrative            Section 188.7. Terminology is revised and responsibility for authoriz-
steps necessary to reconfigure their zones, but this is a statutorily imposed   ing agency disposition of records is clarified.
burden, not solely a regulatory one. Because it is evident from the nature         Section 188.8. Terminology is revised.
of the emergency rule that it will have either no substantive impact, or a         Section 188.9. Terminology is revised.
positive impact, on small businesses and local governments, no further af-         Section 188.10. Terminology is revised.
firmative steps were needed to ascertain that fact and none were taken.            Section 188.11. Terminology is revised.
Accordingly, a regulatory flexibility analysis for small businesses and lo-        Section 188.12. Responsibilities for requesting and approving the emer-
cal government is not required and one has not been prepared.                   gency destruction of records are clarified.
                                                                                   Section 188.13. Terminology is clarified and a procedure is established
Rural Area Flexibility Analysis                                                 to authorize the destruction of damaged records.
The program is a statewide program. There are eligible municipalities and          Section 188.14. Terminology is revised and responsibility for operating
businesses in rural areas of New York State. However, participation is          records center facilities is clarified.
entirely at the discretion of eligible applicant municipalities and eligible       Section 188.15. Terminology is revised.
business enterprises. The program does impose some responsibility on               Section 188.16. Terminology is revised and responsibility for respond-
those municipalities and businesses which participate in the program such       ing to legal orders for access to agency records stored in a records center
as submitting applications and reports. The emergency rule will not impose      facility is clarified.
any additional reporting, record keeping or other compliance requirements          Section 188.17. Terminology is revised.
on public or private entities in rural areas. Therefore, the emergency             Section 188.18. The procedures and standards for duplicating original
regulation will not have a substantial adverse economic impact on rural ar-     records on microforms are revised based on current industry standards.
eas or reporting, record keeping or other compliance requirements on pub-          Section 188.19. The section is deleted because the needed standards are
lic or private entities in such rural areas. Accordingly, a rural area flex-    established through the previous section 188.18.
ibility analysis is not required and one has not been prepared.                    Section 188.20. The procedures and standards for the retention and
Job Impact Statement                                                            preservation of electronic records are revised based on current industry
The emergency regulation relates to the Empire Zones Program. The               standards and made exclusive to state agencies.
Empire Zones Program itself is a job creation incentive. The emergency             Section 188.21. The list of agencies paying annual fees for records
regulation will not have a substantial adverse impact on jobs and employ-       management services is revised based on the current structure of state
ment opportunities. In fact, the emergency regulations, which result from       government and the fees charged for storing records in a records center fa-
statutory-based reforms, will enable the program to better fulfill its          cility are revised. In addition, terminology is revised and the responsibility
mission: job creation and investment for economically distressed areas. At      for authorizing waivers of agency annual fees is clarified.
the same time, businesses currently receiving benefits will not have their         Section 188.22. Responsibility for operation of archives facilities is
status jeopardized as a result of the emergency regulations. Because it is      clarified.
evident from the nature of the emergency regulations that it will have ei-         Section 188.23. Terminology is revised and responsibility for authoriz-
ther no impact, or a positive impact, on job and employment opportuni-          ing transfer of archival records to the State Archives is clarified.
ties, no further affirmative steps were needed to ascertain that fact and          Section 188.24. Terminology is corrected and responsibility for assist-
none were taken. Accordingly, a job impact statement is not required and        ing the judiciary in managing archival records is clarified.
one has not been prepared.                                                         Section 188.25. Responsibility for assisting in the management of exec-
                                                                                utive chamber records is clarified.
                                                                                   Section 188.26. Procedures for providing public access to archival re-
                                                                                cords in the State Archives are clarified.
              Education Department                                                 Section 188.27. Terminology is revised and responsibility for protect-
                                                                                ing and loaning archival records is clarified.
                                                                                   Section 188.28. Terminology is revised and responsibility for archival
                                                                                records of the State University of New York is clarified.
                 PROPOSED RULE MAKING                                              Section 188.29. Terminology is revised and responsibility for authoriz-
                NO HEARING(S) SCHEDULED                                         ing records disposition by boards of elections is clarified.
                                                                                Text of proposed rule and any required statements and analyses may be
State Government Archives and Records Management                                obtained from: Lisa Struffolino, State Education Department, Office of
                                                                                Counsel, State Education Building, Room 148, 89 Washington Avenue,
I.D. No. EDU-44-08-00010-P                                                      Albany, NY 12234, (518) 473-4921, email: legal@mail.nysed.gov
                                                                                Data, views or arguments may be submitted to: Christine Ward, Assistant
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     Commissioner, New York State Education Department, Office of Cultural
cedure Act, NOTICE is hereby given of the following proposed rule:              Education, CEC Room 9A49, Cultural Ed Center, Albany, NY 12230,
                                                                                (518) 473-7091, email: cward@mail.nysed.gov
Proposed Action: Amendment of Part 188 of Title 8 NYCRR.
                                                                                Public comment will be received until: 45 days after publication of this
Statutory authority: Education Law, section 207 (not subdivided); Arts          notice.
and Cultural Affairs Law, section 57.05(9)
                                                                                Regulatory Impact Statement
Subject: State Government Archives and Records Management.                         STATUTORY AUTHORITY:
Purpose: To revise and clarify Part 188 regarding State records replace-           Education Law section 207 authorizes the Board of Regents and the
ment, retention, disposition and storage fees.                                  Commissioner of Education to adopt rules and regulations to carry out the
Substance of proposed rule (Full text is posted at the following State          laws of the State regarding education and the functions and duties
website:          http://www.archives.nysed.gov/a/records/mr laws               conferred on the State Education Department by law.
reg188 proposed.shtml): The State Education Department proposes to                 Arts and Cultural Affairs Law section 57.05 provides for the systematic
amend Part 188 of the Regulations of the Commissioner of Education, ef-         management of State government records. Arts and Cultural Affairs Law
fective February 5, 2009, which establish requirements for state govern-        section 57.05(9) authorizes the Commissioner of Education to promulgate
ment archives and records management, to revise and clarify various pro-        regulations to implement the provisions of section 57.05, provided that no
visions, especially those relating to replacing original records with           objection is made to the regulations within thirty days prior to the effec-
microforms, the retention and preservation of electronic records, the dis-      tive date of the proposed regulations by the speaker of the assembly for
position of damaged records, and fees for records management services           regulations relating to records of the assembly, by the president pro-tem of
and the storage of records at the state records center. The following signif-   the senate for regulations relating to records of the senate, by the director
icant changes have been proposed:                                               of the division of the budget for regulations relating to records of the civil
   Section 188.1. Terminology used to establish the purpose of the regula-      departments, and by the chief administrator of the courts for regulations
tions is corrected and revised to match the current organizational name.        relating to records of the judiciary.
   Section 188.2. Definitions used in Part 188 are revised.                        LEGISLATIVE OBJECTIVES:
   Section 188.3. Terminology is revised to match the current organiza-            The proposed amendment carries out the intent of the statutes by updat-
tional name.                                                                    ing and clarifying various provisions of Part 188 of the Regulations of the

14
NYS Register/October 29, 2008                                                                                             Rule Making Activities
Commissioner of Education, especially provisions relating to replacing               COMPLIANCE SCHEDULE:
original records with microforms, the retention and preservation of                  It is anticipated that State agencies will be able to immediately comply
electronic records, the disposition of damaged records, and fees for re-          with the proposed amendment upon its effective date.
cords management services and the storage of records at the State records
center.                                                                           Regulatory Flexibility Analysis
   NEEDS AND BENEFITS:                                                            The proposed amendment relates solely to State government archives and
   The proposed amendment is needed to update and clarify various provi-          records management and does not impose any reporting, recordkeeping or
sions of Part 188. In particular, revisions to section 188.13 establish           other compliance requirements on small businesses or local government,
procedures to authorize the destruction of damaged records. Revisions to          nor will it impose any adverse economic impact on them. Because it is
section 188.18 clarify and modernize requirements for replacing original          evident from the nature of the proposed amendment that it will not affect
records with microforms. Revisions to section 188.20 clarify and modern-
ize requirements for the retention and preservation of electronic records.        small businesses or local government, no further steps were needed to
Revisions to section 188.21 update the list of agencies paying fees for re-       ascertain that fact and none were taken. Accordingly, a regulatory flex-
cords management services and the fee for storing records at the State re-        ibility analysis for small businesses and local government is not required
cords center. These changes establish improved and uniform standards for          and one has not been prepared.
State government records management operations.                                   Rural Area Flexibility Analysis
   COSTS:
   (a) Costs to the State: The proposed amendment will update the list of         The proposed amendment relates solely to State government archives and
State agencies paying fees for records management services to reflect             records management and will not impose any adverse economic impact or
changes in State agency organization and will increase the fee for storing        reporting, recordkeeping, or other compliance requirements on public or
records at the State records center.                                              private entities in rural areas of the state. Because it is evident from the
   The proposed amendment will change the fees charged for records                nature of the proposed amendment that it will not affect rural areas of the
center facility storage to a calculation based on the average monthly hold-       state, no further steps were needed to ascertain that fact and none were
ings of the records center facilities at $2.90 per item. An item is defined as    taken. Accordingly, a rural area flexibility analysis is not required and one
a cubic foot for storage of paper records; a cartridge, tape or disk for stor-    has not been prepared.
age of computer or other magnetic and optical media; a reel or equivalent
microform for storage of microfilm; or other item handled. The existing           Job Impact Statement
regulation calculated the fees based on the average monthly holdings of           The proposed amendment relates solely to State government archives and
the records center facility according to the following schedule: (1) $2.20        records management and will not have a substantial adverse impact on
per cubic foot for storage of paper records; (2) $1.50 per cartridge, tape, or    jobs or employment opportunities. Because it is evident from the nature of
disk for storage of computer or other magnetic and optical media; and (3)         the proposed amendment that it will have no impact on jobs or employ-
$.25 per reel or equivalent microform for storage of microfilm.                   ment opportunities, no further measures were needed to ascertain that fact
   The State Archives has determined that the increased Records Center            and none were taken. Accordingly, a job impact statement is not required
storage fee will result in additional annual revenue of $525,000, based on        and one has not been prepared.
the quantity of records stored at the facility. There are currently 51 State
agencies that store records at the facility, which will thus result in an aver-
age increased cost to each of those agencies of $10,294. The actual costs
to particular agencies will vary greatly depending on the volume of re-
cords that each agency stores at the facility. There will be no cost to other
                                                                                        Department of Environmental
agencies that do not use the Records Center to store inactive records. The
State Archives has also determined that agencies have the option to store
                                                                                               Conservation
records with private vendors, but that the costs charged by those facilities,
which range from $8 to $14 per box per year, including charges for re-
cords retrieval and other services for which the Records Center does not                            PROPOSED RULE MAKING
charge, will still be considerably more than the $2.90 per box/item per                             HEARING(S) SCHEDULED
year fee which will be assessed by the Records Center. The State Archives
has also determined that without increased income, the Archives will not          Federal National Emission Standards for Hazardous Air
be able to maintain the current level of records services, and that the end
result would be more costly to the state as an increasing number of agen-         Pollutants (NESHAP) Rules
cies will be forced to use the more expensive services of private vendors         I.D. No. ENV-44-08-00007-P
for records storage.
   (b) Costs to local governments: None.
   (c) Costs to private, regulated parties: None.                                 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
   (d) Costs to State Education Department for implementation and                 cedure Act, NOTICE is hereby given of the following proposed rule:
continued administration of the rule: None, other than those inherent in          Proposed Action: This is a consensus rule making to amend Part 200 of
section 57.05 of the Arts and Cultural Affairs Law. The proposed amend-           Title 6 NYCRR.
ment updates and clarifies various provisions of Part 188, but does not           Statutory authority: Environmental Conservation Law, sections 1-0101,
impose any additional responsibilities or costs on the State Education            3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303 and 19-0305
Department.
   LOCAL GOVERNMENT MANDATES:                                                     Subject: Federal National Emission Standards for Hazardous Air Pollut-
   The proposed amendment relates to the management of State govern-              ants (NESHAP) rules.
ment records and does not impose any additional program, service, duty or         Purpose: To incorporate by reference the Federal NESHAP regulations
responsibility upon any county, city, town, village, school district, fire        and correct existing typographical errors.
district or other special district.                                               Public hearing(s) will be held at: 1:00 p.m., Dec. 1, 2008 at Department
   PAPERWORK:                                                                     of Environmental Conservation, 625 Broadway, Public Assembly Rm.
   The proposed amendment does not impose any additional paperwork                129, Albany, NY; 1:00 p.m., Dec. 3, 2008 at Department of Environmental
requirements.                                                                     Conservation, Region 2 Annex, 11-15 47th Ave., Hearing Rm. 106, Long
   DUPLICATION:                                                                   Island City, NY; 1:00 p.m., Dec. 4, 2008 at Department of Environmental
   The proposed amendment does not duplicate any existing State or                Conservation, Region 8 Office, Conference Rm., 6274 E. Avon-Lima Rd.
federal requirements for State government records. The federal govern-            (Rtes. 5 & 20), Avon, NY.
ment has issued no records management standards specifically intended             Interpreter Service: Interpreter services will be made available to hearing
for use by the State government of New York.                                      impaired persons, at no charge, upon written request submitted within rea-
   ALTERNATIVES:                                                                  sonable time prior to the scheduled public hearing. The written request
   There are no significant alternatives to the issuance of these require-        must be addressed to the agency representative designated in the paragraph
ments for State government records management and none were                       below.
considered.                                                                       Accessibility: All public hearings have been scheduled at places reason-
   FEDERAL STANDARDS:                                                             ably accessible to persons with a mobility impairment.
   The proposed amendment is promulgated pursuant to the specific
requirements of New York State Arts and Cultural Affairs Law section              Text of proposed rule: Sections 200.1 through 200.8 remain unchanged.
57.05. The federal government has issued no records management stan-                 Existing Section 200.9 is amended to read as follows:
dards specifically intended for use by the State government of New York.                                            Table 1

                                                                                                                                                           15
Rule Making Activities                                                                  NYS Register/October 29, 2008

  Regulation             Referenced Material                Availability    *S    Pulp and Paper (P&P I and III)   [488-520] 500-532
6 NYCRR Part/        CFR (Code of Federal Regula-                                                                  Vol. 1
    sec./etc.              tions) or other                                  *T    Halogenated Solvent Cleaning     [520-548] 532-563
   200.10(b)                                                                                                       Vol. 1
    Table 4          40 CFR Part 63 (July 1, [2005]              *          *U    Group I Polymer and Resins       [549-671] 563-683
                                2007)                                                                              Vol. 1
                                                                            *W    National Emission Standards      [672-685] 683-696
  ** Available from Department of Environmental Conservation, Air Re-             for Hazardous Air Pollutants     Vol. 1
sources, 625 Broadway, Albany, [N.Y.] New York, 12233-3251                        for Epoxy Resins Production
                                                                                  and [n]Non- [n]Nylon
  Existing subdivision 200.10(a)-(c) remains unchanged.                           Polyamides Production
  Existing Section 200.10(d) is amended to read as follows:                 *X    Secondary Lead Smelters          [685-698] 696-709
  (d) ‘Table 4'.                                                                                                   Vol. 1
                                 Table 4                                    *Y    Marine Tank Vessel Loading       [698-728] 709-739
                                                                                  Operations                       Vol. 1
        National Emission Standards for Hazardous Air Pollutants
                                                                            *AA   Phosphoric Acid Manufactur-      11-21 Vol. 2
‘40 CFR 63        ‘Source Category'                   ‘Page Number in             ing Plants
Subpart'                                              July 1, [2005] 2007   *BB   Phosphate Fertilizers Produc-    21-31 Vol. 2
                                                      Edition or Date of          tion Plants
                                                      Promulgation &        *CC   Petroleum Refineries             31-93 Vol. 2
                                                      Federal Register
                                                      Cite'                 *DD   Off-[s]Site Waste and            93-146 Vol. 2
                                                                                  Recovery Operations
*A                General Provisions                  [11-69] 11-70 Vol.
                                                      1                     *EE   Magnetic Tape Manufacturing      146-174 Vol. 2
                                                                                  Operations
*B                Requirements for Control            [69-91] 70-93 Vol.
                  Technology Determination for        1                     *GG   Aerospace Manufacturing and      174-226 Vol. 2
                  Major Sources in Accordance                                     Rework Facilities
                  with Clean Air Sections, Sec-                             *HH   Oil and Natural Gas Produc-      [226-259] 226-263
                  tions 112(g) and 112(j)                                         tion Plants                      Vol. 2
*F                Organic Hazardous Air Pollut-       [144-179] 153-188     *II   Shipbuilding/Ship Repair         [260-275] 263-278
                  ants from the Synthetic             Vol. 1                      (Surface Coating)                Vol. 2
                  Organic Chemical                                          *JJ   Wood Furniture Manufactur-       [276-304] 279-307
                  Manufacturing Industry                                          ing Operations                   Vol. 2
*G                Organic Hazardous Air Pollut-       [179-339] 189-349     *KK   Printing and Publishing          [304-333] 307-340
                  ants from the Synthetic             Vol. 1                      Industry                         Vol. 2
                  Organic Chemical
                  Manufacturing Industry for                                *LL   Primary Aluminum Reduction       [333-353] 340-360
                  Process Vents, Storage Ves-                                     Plants                           Vol. 2
                  sels, Transfer Operations and                             *MM   Chemical Recovery Combus-        [353-371] 360-378
                  Wastewater                                                      tion Sources at Kraft, Soda,     Vol. 2
*H                Organic Hazardous Air Pollut-       [339-380] 349-390           Sulfite, and Stand-Alone
                  ants for [Certain Processes         Vol. 1                      Semichemical Pulp Mills
                  Subject to the Negotiated                                 *OO   National Emission Standards      [371-376] 378-383
                  Regulation for] Equipment                                       for Tanks-Level 1                Vol. 2
                  Leaks                                                     *PP   National Emission Standards      [376-384] 383-391
*I                [Polyvinyl Chloride and             [380-390] 390-400           for Containers                   Vol. 2
                  Copolymers] Organic Hazard-         Vol. 1                *QQ   Surface Impoundments             [384-390] 391-397
                  ous Air Pollutants for Certain                                                                   Vol. 2
                  Processes Subject to the
                  Negotiated Regulations for                                *RR   Individual Drain Systems         [390-394] 397-401
                  Equipment Leaks                                                                                  Vol. 2
*J                [Organic Hazardous Air Pol-         [390-391] 400-401     *SS   Closed Vent Systems, Control     [395-432] 402-439
                  lutants for Certain Processes       Vol. 1                      Devices, Recovery Devices,       Vol. 2
                  Subject to the Negotiated                                       and Routing to a Fuel Gas
                  Regulations for Equipment                                       System or a Process
                  Leaks] Polyvinyl Chloride and                             *TT   Equipment Leaks - Control        [432-454] 439-461
                  Copolymers Production                                           Level 1                          Vol. 2
*L                Coke Oven Batteries                 [391-418] 401-428     *UU   Equipment Leaks - Control        [454-487] 461-494
                                                      Vol. 1                      Level 2                          Vol. 2
*M                Perchloroethylene Air Emis-         [418-426] 428-438     *VV   Oil-Water Separators and         [487-495] 494-502
                  sion Standards for Dry Clean-       Vol. 1                      Organic-Water Separators         Vol. 2
                  ing Facilities
                                                                            *WW   Storage Vessels - Control        [496-502] 503-509
*N                Chromium Electroplating and         [426-456] 438-467           Level 2                          Vol. 2
                  Anodizing                           Vol. 1
                                                                            *XX   Ethylene Manufacturing Pro-      [502-511] 509-518
*O                Ethylene Oxide Commercial           [456-471] 467-482           cess Units: Heat Exchange        Vol. 2
                  Sterilizers                         Vol. 1                      Systems and Waste Operations
*Q                Industrial Process Cooling          [471-474] 482-486     *YY   Generic Maximum Achievable       [511-572] 518-579
                  Towers                              Vol. 1                      Control Technology Standards     Vol. 2
*R                Gasoline Distribution Facili-       [475-488] 486-499
                  ties                                Vol. 1


16
NYS Register/October 29, 2008                                                                    Rule Making Activities

*CCC        Steel Pickling - HCl Facilities   [572-581] 579-588     *PPPP     Surface Coating of Plastic      [688-739] 711-762
            and HCl Regeneration              Vol. 2                          Parts and Products              Vol. 4
*DDD        Mineral Wool Production           [581-592] 588-599     *QQQQ     Surface Coating of Wood         [739-782] 762-806
                                              Vol. 2                          Building Products               Vol. 4
*EEE        Hazardous Air Pollutants          [8-68] 9-111 Vol. 3   *RRRR     Metal Furniture Surface Coat-   [782-824] 806-848
            From Hazardous Waste                                              ing                             Vol. 4
            Combustors                                              *SSSS     Metal Coil Surface Coating      [824-850] 848-874
*GGG        Pharmaceuticals Production        [68-179] 111-222                                                Vol. 4
                                              Vol. 3                *TTTT     Leather Finishing Operations    [850-866] 874-890
*HHH        Natural Gas Transmission and      [179-208] 222-250                                               Vol. 4
            Storage Facilities                Vol. 3                *UUUU     Cellulose [Production]          [867-913] 890-939
*III        Flexible Polyurethane Foam        [208-237] 250-280               Products Manufacturing          Vol. 4
            Production                        Vol. 3                *VVVV     Boat Manufacturing              [913-942] 939-967
*JJJ        Group IV Polymer and Resins       [237-358] 280-401                                               Vol. 4
                                              Vol. 3                *WWWW     Reinforced Plastic Composites   [942-998] 967-
*LLL        Portland Cement Manufactur-       [358-379] 401-423               Production                      1026 Vol. 4
            ing Industry                      Vol. 3                *XXXX     Rubber Tire Manufacturing       [998-1033] 1026-
*MMM        Pesticide Active Ingredient       [380-461] 423-504                                               1061 Vol. 4
            Production                        Vol. 3                *YYYY     Stationary Combustion           [1033-1049] 1061-
*NNN        Wool Fiberglass Manufactur-       [461-476] 504-519               Turbines                        1077 Vol. 4
            ing                               Vol. 3                *ZZZZ     Stationary Reciprocating        [15-38] 15-37 Vol.
*OOO        Amino/Phenolic Resins             [476-541] 519-584               Internal Combustion Engines     5
            Manufacturing                     Vol. 3                *AAAAA    Lime Manufacturing Plants       [38-62] 38-61 Vol.
*PPP        Polyether Polyols Production      [541-619] 584-663                                               5
                                              Vol. 3                *BBBBB    Semiconductor Manufacturing     [62-71] 61-71 Vol.
*QQQ        Primary Copper                    27-51 Vol. 4                                                    5
*RRR        Secondary Aluminum Produc-        51-94 Vol. 4          *CCCCC    Coke Oven: Pushing, Quench-     [72-98] 71-97 Vol.
            tion                                                              ing, Battery Stacks             5
*TTT        Primary Lead Smelting             95-103 Vol. 4         *EEEEE    Iron and Steel Foundries        [149-177] 150-178
*UUU        Petroleum Refineries:             [103-180] 103-179                                               Vol. 5
            Catalytic Cracking, Catalytic     Vol. 4                *FFFFF    Integrated Iron and Steel       [178-200] 178-202
            Reforming, and Sulfur [Plant]                                     Manufacturing                   Vol. 5
            Recovery Units                                          *GGGGG    Site Remediation                [200-254] 202-258
*VVV        Publicly Owned Treatment          [180-189] 179-188                                               Vol. 5
            Works                             Vol. 4                *HHHHH    Miscellaneous Coating           [255-281] 258-282
*XXX        Ferroalloys Production:           [189-201] 188-200               Manufacturing                   Vol. 5
            Feromanganese and                 Vol. 4                *IIIII    Mercury Emissions From          [281-308] 282-309
            Silicomanganese                                                   Mercury Cell Chlor-Alkali       Vol. 5
*AAAA       Municipal Solid Waste             [201-208] 200-207               Plants
            Landfills                         Vol. 4                *LLLLL    Asphalt Roofing and Process-    [355-377] 356-378
*CCCC       Manufacturing of Nutritional      [208-221] 207-220               ing                             Vol. 5
            Yeast                             Vol. 4                *MMMMM    Flexible Polyurethane Foam      [377-391] 378-392
*DDDD       Plywood and Composite             [221-270] 220-280               Fabrication                     Vol. 5
            Wood Products                     Vol. 4                *NNNNN    Hydrochloric Acid [& Fumed      [9-27] 10-28 Vol. 6
*EEEE       Organic Liquid Distribution       [271-303] 280-322               Silica] Production
            (Non-Gasoline)                    Vol. 4                *PPPPP    Engine Test Cells/Stands        [27-53] 28-54 Vol.
*FFFF       Miscellaneous Organic             [304-342] 322-367                                               6
            Chemical Manufacturing            Vol. 4                *QQQQQ    Friction Products Manufactur-   [53-61] 54-62 Vol.
*GGGG       Solvent Extraction For Vege-      [343-367] 367-391               ing                             6
            table Oil Production              Vol. 4                *RRRRR    Taconite Iron Ore Processing    [61-86] 62-86 Vol.
*HHHH       Wet Formed Fiberglass Mat         [367-382] 392-407                                               6
            Production                        Vol. 4                *SSSSS    Refractory Products             [86-134] 87-135
*IIII       Surface Coating of                [382-440] 407-467               Manufacturing                   Vol. 6
            Automobiles and Light-Duty        Vol. 4                *TTTTT    Primary Magnesium Refining      [134-146] 135-147
            Trucks                                                                                            Vol. 6
*JJJJ       Paper and Other Web               [440-471] 467-499     *DDDDDD   Polyvinyl Chloride and          147-148 Vol. 6
            [Surface] Coating                 Vol. 4                          Copolymers Production Area
*KKKK       Surface Coating of Metal Cans     [471-529] 499-553               Sources
                                              Vol. 4                *EEEEEE   Primary Copper Smelting         148-161 Vol. 6
*MMMM       Surface Coating of Miscel-        [530-584] 553-608               Area Sources
            laneous Metal Parts and           Vol. 4                *FFFFFF   Secondary Copper Smelting       161-166 Vol. 6
            Products                                                          Area Sources
*NNNN       Large Appliance Surface           [584-624] 608-648     *GGGGGG   Primary Nonferrous Metals       166-176 Vol. 6
            Coating                           Vol. 4                          Area Sources – Zinc,
*OOOO       Printing, Coating, and Dyeing     [624-688] 648-711               Cadmium, and Beryllium
            of Fabrics and Other Textiles     Vol. 4


                                                                                                                               17
Rule Making Activities                                                                                  NYS Register/October 29, 2008

*Appendix A        Test Methods                       [146-347] 176-375
                                                      Vol. 6
                                                                                            Department of Labor
*Appendix B        Sources Defined for Early          [348] 376 Vol. 6
                   Reduction Provisions                                                                 EMERGENCY
*Appendix C        Determination of the Fraction      [348-379] 376-407
                   Biodegraded in a Biological        Vol. 6                                           RULE MAKING
                   Treatment Unit
                                                                             Enhanced Administration of the State's Apprenticeship Training
*Appendix D        Alternative Validation Proce-      [379-380] 407-408
                   dure For EPA Waste and             Vol. 6                 Program and Enhanced Program Sponsor Accountability
                   Wastewater Methods                                        I.D. No. LAB-44-08-00009-E
*Appendix E        Monitoring Procedure For           [380-392] 408-420      Filing No. 1008
                   Nonthoroughly Mixed Open           Vol. 6                 Filing Date: 2008-10-14
                   Biological Treatment Systems
                   at Kraft Pulp Mills Under                                 Effective Date: 2008-10-15
                   Unsafe Sampling Conditions
                                                                             PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
                                                                             cedure Act, NOTICE is hereby given of the following action:
   [+Promulgated after 7/1/97 - not included in 40 CFR 63 as of the          Action taken: Addition of sections 601.4(i) and 601.5(d)-(g) to Title 12
effective date this Part.]                                                   NYCRR.
Text of proposed rule and any required statements and analyses may be        Statutory authority: Labor Law, section 811; and 29 CFR 29
obtained from: Rick Leone, P.E., Department of Environmental Conser-         Finding of necessity for emergency rule: Preservation of general welfare.
vation, 625 Broadway, Albany, NY 12233-3254, (518) 402-8403, email:          Specific reasons underlying the finding of necessity: The rule enhances
neshaps@gw.dec. state.ny.us                                                  consistency in administration of the state's Apprenticeship Training
                                                                             Program, stakeholder participation in program approval, and program
Data, views or arguments may be submitted to: Same as above.                 sponsor accountability that will ensure a well-trained workforce for the
                                                                             state's future.
Public comment will be received until: Five days after the last scheduled    Subject: Enhanced administration of the state's apprenticeship training
public hearing.                                                              program and enhanced program sponsor accountability.
Additional matter required by statute: Pursuant to Article 8 of the State    Purpose: To strengthen the Apprenticeship Training Program in New
Environmental Quality Review Act, a Short Environmental Assessment           York and ensure a well-trained, skilled workforce for the future.
Form, a Negative Declaration and a Coastal Assessment Form have been         Text of emergency rule: Section 601.4 of the regulations of the Commis-
prepared and are on file. This rule must be approved by the Environmental    sioner of Labor is amended by adding a new sub-section (i) as follows:
Board.                                                                          (i) A written public comment period is required for all new trades and
                                                                             apprenticeship program applications. A list of all new trades and new ap-
Consensus Rule Making Determination                                          prenticeship program applications will be placed on the New York State
                                                                             Department of Labor website for a minimum period of ten business days
  6 NYCRR Part 200, Section 200.10 incorporates by reference the             to solicit public comments. Those individuals who submit comments will
Federal National Emission Standards for Hazardous Air Pollutants             be asked to provide their name, title, organizational name and their com-
(NESHAP) which appear in 40 CFR Part 63. The proposed rulemaking             ments via mail or e-mail. Comments received will be reviewed by the Ap-
will update 6 NYCRR 200.10 to incorporate the new and amended                prenticeship Training Program Director, and action will be taken, as
NESHAP regulations which appeared in the July 1, 2007 Code of Federal        deemed appropriate.
Regulations and to correct existing typographical errors.                       Section 601.5 of the regulations of the Commissioner of Labor is
                                                                             amended by adding new sub-sections (d), (e), (f), and (g), as follows:
  In addition to the amendments to Section 200.10, 6 NYCRR 200.9 will           (d) All sponsors of apprenticeship training programs, and their
be updated to reflect the new and modified references in Section 200.10.     signatories - if any, are required to ensure that their apprentices maintain
                                                                             records that document job rotation and the skills acquired. The apprentice
  The proposed rulemaking adopts already existing Federal standards          must maintain this record in a format approved by the New York State
only and therefore does not impose additional requirements on regulated      Department of Labor. The apprentice's immediate supervisor is required
entities. Consequently, no person is likely to object to this rulemaking.    to sign off on this record at least monthly.
                                                                                (e) Newly approved sponsors seeking registration of new apprentice-
Job Impact Statement                                                         ship programs must undergo a two year probationary period. Newly ap-
  1. Nature of impact:                                                       proved sponsors will be advised that their programs will be approved
                                                                             contingent upon successful completion of the probationary period.
   This proposed rulemaking will have no impact on numbers of jobs or              (1) Factors considered during the probationary period include, but
employment opportunities in the State. The purpose of the rulemaking is      are not limited to:
to update the Table of National Emission Standards for Hazardous Air                  (i) Payment of wages as specified in the apprenticeship agree-
Pollutants to cite to the 2007 Code of Federal Regulations and to correct    ment;
existing typographical errors. The proposed rulemaking adopts Federal                 (ii) documentation of job rotation;
standards only and does not impose additional requirements on regulated               (iii) documentation of participation in related instruction;
entities.                                                                             (iv) provision of proper supervision;
                                                                                      (v) provision of a safe work environment; and
  2. Categories and numbers affected:                                                 (vi) compliance with the provisions of Labor Law, Article 23 and
                                                                             12 NYCRR Parts 600 and 601.
  This proposed rulemaking will not affect specific categories of jobs nor         (2) After a review of the new sponsor's performance during the
will it affect the number of jobs or employment opportunities.               probationary period, the sponsor will be notified whether they:
                                                                                      (i) passed probation; or
  3. Regions of adverse impact:                                                       (ii) will be placed on an extended probation for a period of no
  This proposed rulemaking will not affect any region of the state           more than one year, informed of the reasons why this decision was made,
specifically.                                                                and issued a corrective action plan; or
                                                                                      (iii) failed probation and the reasons why.
  4. Minimizing adverse impact:                                                 (f) New sponsors who fail probation will not be permitted to reapply for
                                                                             registration of an apprenticeship program for a period of one year. This
  Since this proposed rulemaking will not affect the number of jobs or       prohibition additionally applies to any successor or substantially owned-
employment opportunities, there have been no steps taken to minimize the     affiliated entity, as those terms are defined in Labor Law, Section 220, of
impact on existing jobs.                                                     the new sponsor. The new sponsor may file a written appeal to the deci-

18
NYS Register/October 29, 2008                                                                                           Rule Making Activities
sion by sending a letter to the Commissioner of Labor putting forth its         monitoring program signatories and their compliance with apprenticeship
arguments why the sponsor candidate should not have failed probation.           training requirements shores up program oversight and accountability.
   (g) All Apprentice Training Program sponsors will undergo a recertifi-       Finally, the program recertification process allows sponsors an opportunity
cation process for each program at three year intervals. Commencing             to ensure the Department has current and accurate information on their
with enactment of these regulations, for the first three years, these           programs and signatories and ensures periodic monitoring of all ap-
recertifications shall be performed on a basis of older programs, by            prenticeship programs on a regular basis.
region, being recertified first.                                                   4. Costs:
      (1) Each sponsor shall complete a new Apprenticeship Training                The implementation of these regulations will result in the need for the
Program Registration Agreement for each of their programs.                      apprentice's on-the-job supervisor to sign the apprentice's Blue Book, or
         (i) Simultaneously, any sponsors of Group Joint or Group Non-          other form of documentation of job rotation approved by the Department.
Joint programs must submit a current list of program signatories' names,        It will also require that new sponsors go through a two-year probation pe-
addresses, Federal Employer Identification Numbers, and Unemployment            riod before being certified. Further, the rules call for triennial sponsor
Insurance Employer Numbers in an electronic format as specified by the          recertification, the reporting and monitoring of employer-members and
Department of Labor.                                                            employer-signatories by program sponsors, and, if needed, the preparation
         (ii) The Sponsor shall also collect completed and signed Due Dili-     and implementation of corrective action plans for sponsors who fail to
gence forms from each signatory, provide any such forms with affirmative        measure up to program standards. The amount of time and resources
answers to the Department of Labor with its new Apprenticeship Training         needed will be contingent upon the size of the program and the complexity
Program Registration Agreement, and maintain the rest of the applica-           of the corrective action issues.
tions in its office for ongoing review and inspection by the Department.           It is anticipated that the implementation of the regulations will impact
         (iii) The program sponsor must provide assurances in writing to        Apprenticeship Training Office staff. The caseloads for field staff will be
the New York State Department of Labor that the sponsor will hold all           adjusted accordingly to accommodate for these needs; however, additional
signatories to the standards of their Apprentice Training Program               staff will be required in central office to process the documents for
Registration Agreement with the New York State Department of Labor.             program probation and recertification, for tracking of signatory informa-
      (2) After a review of the sponsor's performance during the period         tion, as well as handling the correspondence regarding public comments
prior to recertification, the sponsor will receive notification that:           on new trades and program applications.
         (i) Its Apprenticeship Training Program has been renewed; or              5. Local government mandates:
         (ii) It was found to have committed the violations specified, and is      Municipalities, school districts, fire districts and others who currently,
to be issued a corrective action plan; formal deregistration will be pursued    or plan to, serve as program sponsors for apprenticeship training programs
only if NO corrective action has been taken by the sponsor within a rea-        will have to comply with the new requirements that will apply to any new
sonable period of time to resolve all issues; or                                programs proposed by them including public notice of program
         (iii) Its Training Program has been recommended for deregistra-        applications. All apprenticeship programs in which these entities partici-
tion and deregistration proceedings will be initiated.                          pate will be subject to ensuring that current and accurate information is
                                                                                held on program signatories. The Department will be responsible for mon-
This notice is intended to serve only as a notice of emergency adoption.        itoring the signatories on a random sample basis. However, these require-
This agency intends to adopt this emergency rule as a permanent rule and        ments apply only to local governments that choose to serve as program
will publish a notice of proposed rule making in the State Register at some     sponsors for apprenticeship programs. Moreover, the amendments will
future date. The emergency rule will expire January 11, 2009.                   benefit such local governments by ensuring consistency and accountability
Text of rule and any required statements and analyses may be obtained           among program sponsors and will assist local governments that have
from: Maria Colavito, New York State Department of Labor, Room 508,             enacted local laws requiring public work contractors to participate in state
Building 12, State Office Campus, Albany, NY 12240, (518) 457-4380,             registered apprenticeship training programs by helping to ensure the qual-
email: nysdol@labor. state.ny.us                                                ity of such programs.
Regulatory Impact Statement                                                        Apprenticeship Training Program staff will be available to provide
   1. Statutory authority:                                                      technical assistance to program sponsors - including local governments
   Labor Law § 811.1(j) states that the Commissioner of Labor shall have        choosing to undertake this role - to assist them in complying with the rule.
the power to adopt such rules and regulations as may be necessary for the          6. Paperwork:
effective administration of the purposes and provisions of Article 23. In          Apprenticeship programs traditionally require apprentices and their
addition, the emergency regulations are promulgated under authority             supervisors to track apprentices' progress through various job rotations
granted to the Department under federal regulations found at 29 CFR 29.         included in their overall training program. While ‘‘blue books’’ have
   2. Legislative objectives:                                                   traditionally been used for this purpose, the proposed rule allows for flex-
   Labor Law Article 23, § 810 makes it the public policy of the State of       ibility in this regard by providing for skills attainment to be tracked in
New York to develop sound apprenticeship training standards and to              some other format approved by the Department.
encourage industry and labor to institute apprenticeship programs as a             Additional paperwork that will be required from regulated parties as a
preferred method of training and preparing workers in New York. These           result of these rule changes include corrective action plans for program
amendments fulfill these legislative objectives and strengthen the Ap-          sponsors who fail to comply with program requirements and triennial
prenticeship Training program in New York by increasing public partici-         recertification applications.
pation in the apprenticeship process, reinforcing the need to memorialize          At the same time, the Department will have to develop and complete a
skill attainment by apprentices, and reaffirming the accountability of          number of new documents including form letters to address probationary
program sponsors for their signatories and apprentices.                         and recertification determinations, form letters to acknowledge receipt of
   3. Needs and benefits:                                                       public written comments, as well as revisions to the Apprentice Training
   During the past year, the Commissioner of Labor placed a moratorium          Program Registration Agreement.
on the approval of apprenticeship training programs in all trades while a          The database currently used by the Apprenticeship Training Program
thorough review of the State's Apprenticeship Training Program was              will also need to be revised to track probationary and recertification
conducted. Two independent reviews were conducted, an internal review -         periods and program signatories' information.
the Process Mapping Report - and an External Review conducted by Cof-              7. Duplication:
fey Consultant's. These reviews sought input from various stakeholders             No duplication of rules were identified. Rather, these regulations are
and partners as well as Apprenticeship Training Program staff. Both the         intended to clarify existing regulations found in 12 NYCRR § 601.4 Stan-
internal and external reviews echoed common themes and consistent               dards for Apprenticeship Programs and 12 NYCRR § 601.5 Standards for
recommendations to ensure the development of a world class workforce.           Apprenticeship Agreements.
Those themes included the need for greater stakeholder involvement in the          8. Alternatives:
registration process, increased consistency in program implementation,             Overall there are no viable alternatives to the requirements set forth in
and increased accountability by program sponsors in ensuring the quality        the proposed rule. The rule reinforces basic requirements for program
and effectiveness of apprenticeship programs. A number of significant           registration, monitoring, and accountability recommended by consultants
recommendations which surfaced from the internal and external reviews           and various stakeholders folding a long and detailed review of the state's
are reflected in these regulatory amendments.                                   administration of its apprenticeship training program.
   The public comment period for all new program applications affords an           9. Federal standards:
opportunity for stakeholders to provide comments on all new programs               United States Department of Labor's proposed rule changes to 29 CFR
and new trades initiated in New York State. The requirement for use of          29 published in the Federal Register on December 13, 2007, contains a
Blue Books or other form of documentation of job rotation ensures that          requirement for provisional registration, including a one year provisional
apprentices are being rotated to all aspects of their work process resulting    approval of newly registered programs after which program approval may
in a skilled workforce with portable credentials. Sponsor responsibility for    be permanent, continued as provisional, or rescinded following a review

                                                                                                                                                         19
Rule Making Activities                                                                                      NYS Register/October 29, 2008
by the registration agency. New York State's proposed emergency regula-         program sponsors to sign the apprentice's Blue Book, or other form of
tion for a probationary period for all new programs mirrors the proposed        documentation of job rotation, and the preparation and implementation of
federal requirement except that the probation period extends for two years.     the completion of a corrective action plan, if needed, completion of
It is believed that this enhanced requirement will result in higher standards   paperwork for recertification, and the tracking of signatory information.
for New York's Apprenticeship Training program by offering sponsors             The amount of time needed is contingent upon the size of the program and
additional time to fully develop quality programs, while at the same time,      the complexity of the corrective action issues.
affording the Department an opportunity to assess the success of the               5. Economic and technological feasibility:
program based upon a more representative operating history.                        The adoption of these emergency regulations is not expected to place an
    10. Compliance schedule:                                                    undo burden on program sponsors. Wherever possible, the Department
    The two-year probationary requirement will become effective for new         will utilize technology to make filing of documents with the Department
sponsor program applications approved on or after the effective date of         easier. For example, the department encourages sponsors to submit lists of
these regulations.                                                              apprenticeship program signatories in an electronic format. Also, public
    The three-year recertification period will be implemented in each           comments on new program applications and new trades will be accepted
geographic region of the state on an incremental scale determined by the        via an electronic format.
age of the program so that one third of the programs within a region -             6. Minimizing adverse impact:
starting with the oldest programs - will be due for recertification each           For the new regulation regarding sponsors' responsibilities to monitor
year, commencing on or after the effective date of these regulations.           employer signatories it is presumed that sponsors who conduct Group
    The establishment of a written public comment period for new trades         Joint or Group Non-Joint programs currently maintain a list of program
and program applications will be implemented on or after the effective          signatories in their normal course of business.
date of these regulations.                                                         For the new regulation regarding job rotation requirements and accept-
    New sponsor mandates with regard to ensuring that current and ac-           able documentation, this change will allow a stricter enforcement of cur-
curate information is held on their employer signatories will be imple-         rent procedures. Program sponsors should be tracking job rotation at the
mented on or after the effective date of these regulations.                     present time, however, this regulation will provide a more consistent ap-
    Provisions set forth in the rule clarifying job rotation requirements and   plication of this requirement.
acceptable documentation will be effective on or after the effective date of       While the Department believes that the possibility of adverse impact of
these regulations.                                                              the emergency rule should be minimal, the Department will provide ap-
Regulatory Flexibility Analysis                                                 prenticeship program sponsors with reasonable periods of time in which to
    1. Effect of rule:                                                          bring non-compliant programs into compliance with all regulatory require-
    Apprenticeship Training Programs include building and construction          ments, will provide technical assistance to program sponsors, and will
trades, manufacturing trades, state governments (Division of Correctional       provide adjudicatory hearings to program sponsors to challenge any
Services), local governments (such as villages, school districts, and fire      proposed adverse action by the Department. These activities all serve to
districts), as well as other non-traditional trades (such as chef).             minimize any adverse impact from the rule.
    There are four types of Apprenticeship Training programs in the state,         7. Small business and local government participation:
as follows:                                                                        During the past year, New York State placed a moratorium on the ap-
    D Individual Non-Joint: --- Involves a non-union employer and one or        proval of apprenticeship training programs in all trades while a thorough
more apprentices or an employer with a union that does not wish to partic-      review of the program was conducted. Two independent reviews were
ipate in the apprenticeship program. (584 Programs)                             conducted which seeking input from various stakeholders and partners as
    D Individual Joint: --- Involves a single employer and the union            well as Apprenticeship Training Program staff. Small businesses and local
representing the employer's apprentices. (70 Programs)                          governments were given an opportunity to participate in these reviews by
    D Group Joint: --- Involves a group of employers and one union, which       responding to questions asked by parties conducting the reviews. The final
represents the workers of the trade. (194 Programs)                             written Reports authored by Coffey Consulting, LLC, and NYSDOL were
    D Group Non-Joint: --- Involves a group of non-union employers or           posted for public review on NYSDOL's website and seven public forums
an employer trade association whose members agree to apprenticeship             were held throughout the state in August and September 2008, offering
standards among themselves or which contracts with a service provider to        the public, including small businesses and local governments, an op-
administer the apprenticeship program and to provide related instruction        portunity to provide their comments on the reports. All feedback received
classes for the apprentices. (27 Programs)                                      as a result of these activities was reviewed and considered and a number
    Please note the data listed above reflects the number of programs in        of recommendations received from stakeholders, interested parties, and
each category, not individual sponsors. One sponsor may operate multiple        the consultants are reflected in this rulemaking.
programs.                                                                       Rural Area Flexibility Analysis
    2. Compliance requirements:                                                    1. Types and estimated numbers of rural areas:
    Participation in apprenticeship training programs is completely                Apprenticeship training programs may be sponsored by a single
voluntary. Small businesses and local government sponsors who choose to         employer, a group of employers, or a joint apprenticeship committee
participate in such programs may be required to undertake additional rec-       representing both employers and a union. These sponsors may be located
ord keeping activities associated with tracking the apprentice's progress       throughout New York State, including all rural areas of the State.
through various job rotations, if they were not complying with this require-       2. Reporting, recordkeeping and other compliance requirements; and
ment previous to the implementation of this rule. Such record keeping           professional services:
may be accomplished through use of a ‘‘Blue Book’’ or, under the                   All Apprenticeship Training Program Sponsors in rural areas who
proposed rule, some other format approved by the Commissioner. Small            conduct Group Joint or Group Non-Joint programs must provide a list of
businesses and local governments sponsoring apprenticeship training             all employer signatories to NYSDOL and will be required to hold all
programs will also be responsible for the preparation and implementation        signatories to the standards of their Apprentice Training Program Registra-
of a corrective action plan, if needed, to bring their program into compli-     tion Agreement with NYSDOL.
ance with statutory and regulatory requirements governing apprenticeship           All program sponsors in rural areas will be required to ensure their ap-
programs; completion of paperwork for triennial recertification; and            prentices are regularly keeping ‘‘Blue Books’’ or a comparable record to
obtaining and tracking of signatory information. The amount of time             ensure documentation of job rotation and the attainment of skills.
needed for all these activities is contingent upon the size of the program         All program sponsors in rural areas will be required to apply for
and the degree to which these programs are already in compliance with           recertification of programs every three years and to undergo a program
requirements of the current regulations governing the program.                  review at that time. Deficiencies in program administration or operation
    3. Professional services:                                                   identified during the review will have to be corrected.
    The adoption of these emergency regulations is not expected to place an        All applications for new apprenticeship training programs by sponsors
undo burden on program sponsors that would require them to retain profes-       in rural areas will be subject to publication and public comments. Spon-
sional services.                                                                sors may be required to respond to inquiries from Apprenticeship Training
    4. Compliance costs:                                                        Program staff in response to comments received from the public.
    The adoption of these emergency regulations is not expected to place an        3. Costs:
undo burden on program sponsors with regard to cost. For example, the              The adoption of these emergency regulations is not expected to place an
completion of blue books or an alternative method of documentation of           undue burden on program sponsors located in rural areas as opposed to
job rotation is done by the apprentice's supervisor. All Apprentice Train-      program sponsors in other geographic areas of the state. The implementa-
ing Program Registration Agreements provide for a specified ratio of ap-        tion of these regulations will result in the need for the apprentice's on-the-
prentices to journey workers (supervisors). Therefore, a supervisor will be     job supervisor to sign the apprentice's Blue Book or other form of
responsible for a limited number of apprentices and their Blue Books.           documentation of job rotation approved by the Department. It will also
    The implementation of these regulations will result in the need for         require that new sponsors go through a two-year probation period before

20
NYS Register/October 29, 2008                                                                                             Rule Making Activities
being certified. Further, the rules call for triennial sponsor recertification,
that sponsors insure current and accurate information is held on program
signatories, and, if needed, the preparation and implementation of correc-
                                                                                               Office of Mental Health
tive action plans for sponsors who fail to measure up to program standards.
The amount of time and resources needed will be contingent upon the size
of the program and the complexity of the corrective action issues. New
                                                                                                       NOTICE OF ADOPTION
York State Department of Labor Staff is available to assist in addressing
                                                                                  Medical Assistance Payments for Comprehensive Psychiatric
any corrective action issues. It is not anticipated that the rule would require
the programs to hire professional staff or consultants to undertake any of        Emergency Programs
these tasks.                                                                      I.D. No. OMH-30-08-00002-A
   4. Minimizing adverse impact:                                                  Filing No. 1007
   It is presumed that sponsors located in rural areas who conduct Group          Filing Date: 2008-10-09
Joint or Group Non-Joint programs currently maintain a list of program
signatories in their normal course of business. Therefore, the emergency          Effective Date: 2008-10-29
rule should not have an adverse impact from any sponsors in this regard.
   The documentation of job rotation requirements for sponsors is cur-            PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
rently enacted by procedure. Program sponsors located in rural areas              cedure Act, NOTICE is hereby given of the following action:
should be tracking job rotation at the present time and the impact from the       Action taken: Amendment of Part 591 of Title 14 NYCRR.
emergency rule should be minimal.                                                 Statutory authority: Mental Hygiene Law, sections 7.09, 31.04, 31.27 and
   The Department's Apprenticeship Training Program staff is available            43.02
to provide technical assistance to program sponsors located in rural areas        Subject: Medical Assistance Payments for Comprehensive Psychiatric
as well as other areas of the state. Moreover, the Department will provide        Emergency Programs.
apprenticeship program sponsors with reasonable periods of time in which          Purpose: To increase rates for Comprehensive Psychiatric Emergency
to bring non-compliant programs into compliance with all regulatory               Programs as required by the enacted State budget for FY 2008-2009.
requirements and will provide adjudicatory hearings to program sponsors           Text or summary was published in the July 23, 2008 issue of the Register,
to challenge any proposed adverse action by the Department. These activi-         I.D. No. OMH-30-08-00002-P.
ties all serve to minimize any adverse impact from the rule.                      Final rule as compared with last published rule: No changes.
   5. Rural area participation:
                                                                                  Text of rule and any required statements and analyses may be obtained
   During the past year, New York State placed a moratorium on the ap-            from: Joyce Donohue, NYS Office of Mental Health, 44 Holland Avenue,
proval of apprenticeship training programs in all trades while a thorough         8th Floor, Albany, NY 12229, (518) 474-1331, email:
review of the program was conducted. Two independent reviews were                 cocbjdd@omh.state.ny.us
conducted seeking input from various stakeholders and partners as well as
                                                                                  Assessment of Public Comment
Apprenticeship Training Program staff. Sponsors in rural areas were given
an opportunity to participate in these reviews by responding to questions         The agency received no public comment.
asked by parties conducting the reviews. The final written Reports
authored by Coffey Consulting, LLC and NYSDOL were posted for pub-
lic review on NYSDOL's website and seven public forums were held
throughout the state in August and September 2008, offering the public,
                                                                                           Public Service Commission
including sponsors in rural areas, an opportunity to provide their com-
ments on the reports. All feedback received as a result of these activities
was reviewed and considered and a number of recommendations received                               PROPOSED RULE MAKING
from stakeholders, interested parties, and the consultants are reflected in                       NO HEARING(S) SCHEDULED
this rulemaking.
Job Impact Statement                                                              National Grid's Economic Development Plan
   1. Nature of impact:
                                                                                  I.D. No. PSC-44-08-00011-P
   If a sponsor fails to comply with the requirements of the emergency
regulations and a program is ultimately deregistered or not recertified, this
would have an impact on an apprentice's status as a registered apprentice         PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
and thus affect his or her ability to obtain a portable nationally recognized     cedure Act, NOTICE is hereby given of the following proposed rule:
credential of skills standards. The loss of this credential may have a long       Proposed Action: The Public Service Commission is considering a filing
term impact on the apprentice's earning potential.                                from Niagara Mohawk Power Corporation d/b/a National Grid (National
   The Department does not anticipate that the proposed rule will impact          Grid) dated August 29, 2008 proposing an economic development plan.
many jobs as we do not believe it will be necessary to either deregister or       Statutory authority: Public Service Law, sections 5(1)(b), 65 (1), (2), (3),
refuse to recertify a large number of programs. It is expected that the vast      66 (1), (3), (5), (10), (12), (12-b)
majority of programs would comply with all requirements of the rule.              Subject: National Grid's economic development plan.
Moreover, except under extreme circumstances, non-compliant program               Purpose: Consideration of the approval of National Grid's economic
sponsors will be given opportunities to come into compliance before any           development plan.
steps would be taken to terminate a program.
   2. Categories and numbers affected:                                            Substance of proposed rule: The Public Service Commission is consider-
   The Apprenticeship Training Program currently contains 521 construc-           ing a filing from Niagara Mohawk Power Corporation d/b/a National Grid
tion trades programs and 354 non-construction trades programs, with over          dated August 29, 2008, proposing, in conformance with an Order Provid-
20,000 registered apprentices.                                                    ing for Revised Procedures and Approving in Part Economic Develop-
   3. Regions of adverse impact:                                                  ment Plan Filing issued May 27, 2008 in Case 01-M-0075, an economic
   These emergency regulations impact all program sponsors in New York            development plan adding new economic initiatives and modifying exist-
State regardless of the geographic location of the apprenticeship program.        ing economic development initiatives. The Commission may adopt,
   4. Minimizing adverse impact:                                                  modify or reject, in whole or in part, the relief proposed.
   While the Department believes that the possibility of adverse impact of        Text of proposed rule and any required statements and analyses may be
the emergency rule on job holders is going to be negligible, the Depart-          obtained by filing a Document Request Form (F-96) located on our
ment will provide apprenticeship program sponsors with reasonable                 website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
periods of time in which to bring non-compliant programs into compli-             Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany,
ance with all regulatory requirements, will provide technical assistance to       New         York        12223-1350,       (518)       486-2655,     email:
program sponsors, and will provide adjudicatory hearings to program               leann ayer@dps.state.ny.us
sponsors to challenge any proposed adverse action by the Department.              Data, views or arguments may be submitted to: Jaclyn A. Brilling, Secre-
These activities all serve to minimize any adverse impact from the rule.          tary, Public Service Commission, 3 Empire State Plaza, Albany, New
   5. (IF APPLICABLE) Self-employment opportunities:                              York           12223-1350,           (518)          474-6530,       email:
   N/A                                                                            jaclyn brilling@dps.state.ny.us

                                                                                                                                                          21
Rule Making Activities                                                                                     NYS Register/October 29, 2008
Public comment will be received until: 45 days after publication of this        Substance of proposed rule: Verizon New York Inc. and Access Inte-
notice.                                                                         grated Networks, Inc. have reached a negotiated agreement whereby
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural             Verizon New York Inc. and Access Integrated Networks, Inc. will
Area Flexibility Analysis and Job Impact Statement                              interconnect their networks at mutually agreed upon points of intercon-
Statements and analyses are not submitted with this notice because the          nection to provide Telephone Exchange Services and Exchange Access to
proposed rule is within the definition contained in section 102(2)(a)(ii) of    their respective customers. The Agreement establishes obligations, terms
the State Administrative Procedure Act.                                         and conditions under which the parties will interconnect their networks
                                                                                lasting until September 14, 2010, or as extended.
(01-M-0075SA43)
                                                                                Text of proposed rule and any required statements and analyses may be
                 PROPOSED RULE MAKING                                           obtained by filing a Document Request Form (F-96) located on our
                                                                                website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
                NO HEARING(S) SCHEDULED                                         Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany,
                                                                                New        York       12223-1350,        (518)      486-2655,       email:
Filing of Certificate of Merger with New York Department of                     leann ayer@dps.state.ny.us
State                                                                           Data, views or arguments may be submitted to: Jaclyn A. Brilling, Secre-
                                                                                tary, Public Service Commission, 3 Empire State Plaza, Albany, New
I.D. No. PSC-44-08-00012-P                                                      York           12223-1350,          (518)        474-6530,          email:
                                                                                jaclyn brilling@dps.state.ny.us
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     Public comment will be received until: 45 days after publication of this
cedure Act, NOTICE is hereby given of the following proposed rule:              notice.
Proposed Action: The Commission is considering a request by Oriskany            Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Falls Telephone Corporation for approval to file a Certificate of Merger        Area Flexibility Analysis and Job Impact Statement
with the New York Department of State.                                          Statements and analyses are not submitted with this notice because the
Statutory authority: Public Service Law, section 108                            proposed rule is within the definition contained in section 102(2)(a)(ii) of
Subject: Filing of Certificate of Merger with New York Department of            the State Administrative Procedure Act.
State.                                                                          (08-C-1173SA1)
Purpose: To determine if the filing of a Certificate of Merger should be                         PROPOSED RULE MAKING
approved.
Substance of proposed rule: By amended petition dated October 7, 2008,                          NO HEARING(S) SCHEDULED
Oriskany Falls Telephone Corporation sought approval of the transfer of
all its issued and outstanding stock held by TDS Telecommunications             Mandatory Day-Ahead Hourly Pricing
Corporation to Oriskany Falls Merger Corporation, the merger of Oriskany
Falls Telephone Corporation into Oriskany Falls Merger Corporation, and         I.D. No. PSC-44-08-00014-P
the filing of a Certificate of Merger with the New York Department of
State. The Commission is considering whether to grant or deny, in whole         PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
or in part, approval of the transactions and the filing of the Certificate of   cedure Act, NOTICE is hereby given of the following proposed rule:
Merger.                                                                         Proposed Action: The Commission is considering an implementation plan
Text of proposed rule and any required statements and analyses may be           filed by Orange & Rockland Utilities, Inc. on Mandatory Day-Ahead
obtained by filing a Document Request Form (F-96) located on our                Hourly Pricing in compliance with Commission Order issued July 23,
website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:          2008 in Case 07-E-0949.
Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany,            Statutory authority: Public Service Law, section 66(12)
New         York      12223-1350,        (518)       486-2655,        email:    Subject: Mandatory Day-Ahead Hourly Pricing.
leann ayer@dps.state.ny.us                                                      Purpose: An implementation plan to expand its Mandatory Day-Ahead
Data, views or arguments may be submitted to: Jaclyn A. Brilling, Secre-        Hourly Pricing Program.
tary, Public Service Commission, 3 Empire State Plaza, Albany, New              Substance of proposed rule: The Commission is considering whether to
York          12223-1350,           (518)         474-6530,           email:    approve, modify or reject, in whole or in part, an implementation plan by
jaclyn brilling@dps.state.ny.us                                                 Orange & Rockland Utilities, Inc. to expand its Mandatory Day-Ahead
Public comment will be received until: 45 days after publication of this        Hourly Pricing program filed in compliance with Commission Order is-
notice.                                                                         sued July 23, 2008 in Case 07-E-0949.
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural             Text of proposed rule and any required statements and analyses may be
Area Flexibility Analysis and Job Impact Statement                              obtained by filing a Document Request Form (F-96) located on our
Statements and analyses are not submitted with this notice because the          website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
                                                                                Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany,
proposed rule is within the definition contained in section 102(2)(a)(ii) of    New        York      12223-1350,         (518)      486-2655,       email:
the State Administrative Procedure Act.                                         leann ayer@dps.state.ny.us
(08-C-1134SA1)                                                                  Data, views or arguments may be submitted to: Jaclyn A. Brilling, Secre-
                 PROPOSED RULE MAKING                                           tary, Public Service Commission, 3 Empire State Plaza, Albany, New
                                                                                York          12223-1350,           (518)        474-6530,          email:
                NO HEARING(S) SCHEDULED                                         jaclyn brilling@dps.state.ny.us
                                                                                Public comment will be received until: 45 days after publication of this
Interconnection of the Networks between Verizon and Access                      notice.
Integrated Networks for Local Exchange Service and Exchange                     Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Access                                                                          Area Flexibility Analysis and Job Impact Statement
                                                                                Statements and analyses are not submitted with this notice because the
I.D. No. PSC-44-08-00013-P
                                                                                proposed rule is within the definition contained in section 102(2)(a)(ii) of
                                                                                the State Administrative Procedure Act.
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     (07-E-0949SA2)
cedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: The PSC is considering whether to approve or reject a                           PROPOSED RULE MAKING
proposal filed by Verizon New York Inc. for approval of an Interconnec-                         NO HEARING(S) SCHEDULED
tion Agreement with Access Integrated Networks, Inc. executed on
September 15, 2008.
                                                                                Water Rates and Charges
Statutory authority: Public Service Law, section 94(2)
Subject: Interconnection of the networks between Verizon and Access             I.D. No. PSC-44-08-00015-P
Integrated Networks for local exchange service and exchange access.
Purpose: To review the terms and conditions of the negotiated agreement         PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
between Verizon and Access Integrated Networks.                                 cedure Act, NOTICE is hereby given of the following proposed rule:

22
NYS Register/October 29, 2008                                                                                                Rule Making Activities
Proposed Action: The Commission is considering the filing of Heritage                    (1) Not to exceed the following permitted urine or plasma threshold
Hills Water Works Corporation (Heritage Hills) filed on October 9, 2008,           concentrations:
requesting authority to increase its annual revenues by approximately                       (i) 16β-hydroxystanozolol (metabolite of stanozolol (Winstrol)) - 1
$300,000 or 22%.                                                                   ng/ml in urine
Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1),                   (ii) Boldenone (Equipoise) In male horses other than geldings,
and (10)                                                                           including free boldenone and boldenone liberated from its conjugates - 15
Subject: Water rates and charges.                                                  ng/ml in urine
                                                                                            (iii) Nandrolone - 1 ng/ml in urine
Purpose: For approval to increase Heritage Hills Water Works Corpora-                       (iv) Testosterone
tion's annual revenues by about $300,000 or 22%.                                               (a) In geldings-20 ng/ml in urine
Substance of proposed rule: On October 9, 2008, Heritage Hills Water                           (b) In fillies and mares-55 ng/ml in urine
Works Corporation (Heritage Hills or the company) filed, to become ef-                   (2) Any other anabolic steroids are prohibited to be administered.
fective on February 1, 2009, tariff amendments (Leaf No. 67, Revision 10,                (3) The presence of more than one of the four approved anabolic
Leaf No. 68 Revision 2, and Leaf 69 Revision 2) to its paper tariff sched-         steroids above the approved thresholds is not permitted.
ule P.S.C. No. 2 – Water containing new rates designed to produce ad-                    (4) Post-race urine or plasma samples collected from intact males
ditional annual revenues of about $300,000 or 22%. Heritage Hills                  must be identified to the laboratory.
provides general metered water service to 2,606 residential customers and                (5) Any horse to which an anabolic steroid has been administered in
37 commercial customers in a condominium complex known as Heritage                 order to assist in the recovery from an illness or injury may be placed on
Hills of Westchester, in the Town of Somers, Westchester County. Fire              the veterinarian's list in order to monitor the concentration of the drug in
protection is provided. The company’s tariff, along with its proposed              urine. Once the concentration is below the designated threshold the horse
changes, will be available for review at the company’s office located at           is eligible to be removed from the list.
Heritage Hills Drive, Somers, New York or at the Commission’s offices                 (b) A violation of this section shall be considered a positive test within
located at both 90 Church Street, New York, New York or Three Empire               the meaning of Part 4043.
State Plaza, Albany, New York. The Commission may approve or reject,                  Paragraph 9 of subdivision (e) of Section 4120.2 of 9 NYCRR is
in whole of in part, or modify the company’s request.                              amended to read as follows:
Text of proposed rule and any required statements and analyses may be                    (9) hormones and steroids (e.g., testosterone, progesterone, estrogens,
obtained by filing a Document Request Form (F-96) located on our                   chorionic gonadotropin, glucocorticoids [e.g., Prednisolone, Depomedrol],
website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:             and anabolic steroids [e.g., Equipoise]), except in conjunction with joint
Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany,               aspiration as restricted in subdivision (i) of this section; the use of anabolic
New        York       12223-1350,        (518)      486-2655,       email:         steroids is governed by Rule 4120.12;
leann ayer@dps.state.ny.us                                                            New section 4120.12 of 9 NYCRR is added to read:
Data, views or arguments may be submitted to: Jaclyn A. Brilling, Secre-              4120.12 Anabolic Steroids
tary, Public Service Commission, 3 Empire State Plaza, Albany, New                    (a) The use of one of four approved anabolic steroids shall be permitted
York          12223-1350,            (518)       474-6530,          email:         under the following conditions:
jaclyn brilling@dps.state.ny.us                                                          (1) Not to exceed the following permitted urine or plasma threshold
                                                                                   concentrations:
Public comment will be received until: 45 days after publication of this                    (i) 16β-hydroxystanozolol (metabolite of stanozolol (Winstrol)) - 1
notice.                                                                            ng/ml in urine
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural                         (ii) Boldenone (Equipoise) In male horses other than geldings,
Area Flexibility Analysis and Job Impact Statement                                 including free boldenone and boldenone liberated from its conjugates - 15
Statements and analyses are not submitted with this notice because the             ng/ml in urine
proposed rule is within the definition contained in section 102(2)(a)(ii) of                (iii) Nandrolone - 1 ng/ml in urine
the State Administrative Procedure Act.                                                     (iv) Testosterone
(08-W-1201SA1)                                                                                 (a) In geldings-20 ng/ml in urine
                                                                                               (b) In fillies and mares-55 ng/ml in urine
                                                                                         (2) Any other anabolic steroids are prohibited to be administered.
                                                                                         (3) The presence of more than one of the four approved anabolic
        Racing and Wagering Board                                                  steroids above the approved thresholds is not permitted.
                                                                                         (4) Post-race urine or plasma samples collected from intact males
                                                                                   must be identified to the laboratory.
                                                                                         (5) Any horse to which an anabolic steroid has been administered in
                  PROPOSED RULE MAKING                                             order to assist in the recovery from an illness or injury may be placed on
                 NO HEARING(S) SCHEDULED                                           the veterinarian's list in order to monitor the concentration of the drug in
                                                                                   urine. Once the concentration is below the designated threshold the horse
                                                                                   is eligible to be removed from the list.
The Use of Anabolic Steroids in Racehorses                                            (b) A violation of this section shall be considered a positive test within
I.D. No. RWB-44-08-00008-P                                                         the meaning of Part 4043.
                                                                                   Text of proposed rule and any required statements and analyses may be
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                        obtained from: Gail Pronti, Secretary to the Board, New York State Rac-
cedure Act, NOTICE is hereby given of the following proposed rule:                 ing and Wagering Board, One Broadway Center, Suite 600, Schenectady,
                                                                                   New York 12305, (518) 395-5400, email: info@racing.state.ny.us
Proposed Action: Amendment of sections 4043.2(e)(9) and 4120.2 and                 Data, views or arguments may be submitted to: Same as above.
addition of sections 4043.15 and 4120.12 to Title 9 NYCRR.
                                                                                   Public comment will be received until: 45 days after publication of this
Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law,                notice.
sections 101(1), 301(2)(a), and 902(1)
                                                                                   Regulatory Impact Statement
Subject: The use of Anabolic Steroids in racehorses.                                  1. Statutory authority: Racing, Pari-Mutuel Wagering and Breeding
Purpose: To restrict the administration of certain anabolic steroids to            Law, sections 101.1, 902.1, and 301.2(a) authorizes the New York State
racehorses.                                                                        Racing and Wagering Board (‘‘Board’’) to prescribe and promulgate
Text of proposed rule: Paragraph 9 of subdivision (e) of Section 4043.2 of         regulations to specify the use and testing of drugs and medications in race
9 NYCRR is amended to read as follows:                                             horses. Section 101.1 creates within the executive department the Board,
      (9) hormones and steroids (e.g., testosterone, progesterone, estrogens,      and provides that the Board has general jurisdiction over all horse racing
chorionic gonadotropin, glucocorticoids [e.g., Prednisolone, Depomedrol],          activities and all pari-mutuel betting activities, both on-track and off-
and anabolic steroids [e.g., Equipoise]), except in conjunction with joint         track, in the state, and over the corporations, associations, and persons
aspiration as restricted in subdivision (i) of this section; the use of anabolic   engaged therein. Section 301.2(a) authorizes the Board to prescribe rules
steroids is governed by Rule 4043.15;                                              and regulations for effectually preventing the administration of drugs or
   New Section 4043.15 is added to 9 NYCRR to read:                                stimulants or other improper acts for the purpose of affecting the speed of
   4043.15 Anabolic Steroids                                                       harness horses in races in which they are about to participate. Section
   (a) The use of one of four approved anabolic steroids shall be permitted        902.1 authorizes the Board to promulgate any rules and regulations neces-
under the following conditions:                                                    sary to implement equine drug testing and expenses, and sets forth that

                                                                                                                                                               23
Rule Making Activities                                                                                      NYS Register/October 29, 2008
equine drug testing at race meetings shall be conducted by a land grant         plasma samples, while the RMTC rule only sets thresholds for urine
university within New York State, with a regents approved veterinary col-       samples. For all intents and purposes, the two model rules are the same.
lege facility. Further, section 902.1 provides that the Board shall promul-        4. Costs:
gate rules and regulations to implement administrative penalties of loss of        (a) Costs to regulated parties for the implementation of and continuing
purse money, fines, or denial, suspension or revocation of a license for        compliance with the rule: This rule will not impose any direct costs on
drugged horses.                                                                 owners because the costs of establishing the testing program will be
   2. Legislative objectives: To enable the Board to assure the public's        derived from a ½ of 1 percent takeout from purses awarded at the race
confidence and preserve the integrity of racing at pari-mutuel betting          track. The purse takeout is an indirect cost to the owners who are entitled
tracks by regulating the use of drugs and medications in race horses so that    to purse money, but such an indirect cost is mandated by statute and not
their natural racing ability is not compromised or enhanced by such use.        this rule. The costs of the actual testing are not borne by the owners.
   This rulemaking is consistent with Chapter 267 of the Laws of 2008,             (b) Costs to the agency, the state and local governments for the
which authorizes funding related to the testing of racehorses for the pres-     implementation and continuation of the rule: There are no costs to local
ence of elevated anabolic steroids and which was supported by the New           governments because the New York State Racing and Wagering Board is
York Thoroughbred Horsemen's Association. According to the sponsor's            solely responsible for the regulation of horseracing. There will be new
memo from the bill (A.11683/S.7866a), testing for steroids in racehorses        costs to the Racing and Wagering Board for the administration of the
has become a racing industry priority.                                          Board's anabolic steroid drug testing program, which is conducted at the
   3. Needs and benefits: This rulemaking is necessary to prevent the use       veterinary college Cornell University. In order to cover these start-up
of anabolic steroids in race horses for any purpose other than legitimate       costs, the Legislature enacted Chapter 267 of the Laws of 2008 that would
therapeutic purposes, and to ensure that anabolic steroids are not used in a    allocate funds from a ½ of 1 percent takeout from race purse money to
manner to effect the performance of a racehorse. The recommended                acquire steroid testing equipment. According to Cornell University, costs
amendments would provide the Board with modern rules to reflect current         for staffing the anabolic steroid testing program can not be determined at
regulatory needs concerning the virtually unlimited use of anabolic             this time in light of current state budgetary constraints for the Board's
steroids. This situation has been in the public eye recently and there is       overall equine drug testing program. It is expected that the initial costs of
general consensus in the industry that action is required to assure that        setting up the anabolic steroid testing program will cost $500,000 in the
these drugs are used solely for legitimate therapeutic purposes and are not     first year.
used in a manner to effect the performance of a horse, otherwise adversely         Purse money is derived from various public and private sources. Public
impact the health or safety of the horse, or impair public confidence in the    funds include the New York State Thoroughbred Breeding Fund and the
integrity of racing.                                                            Agriculture and New York State Horsebreeding Development Fund.
   These amendments are based upon the model rule prescribed by the As-         Private sector funds include nomination fees submitted by owners who
sociation of Racing Commissioners International (ARCI) and the Racing           enter their horses in a race, and private entities or individuals who provide
Medication and Testing Consortium (RMTC). The Board currently                   purse money as sponsors of a race.
regulates the administration of anabolic steroids pursuant to Board rules          (c) The information, including the source(s) of such information and
4043.2 and 4120.2. The American Graded Stakes Committee has said that           the methodology upon which the cost analysis is based: This information
racetracks must - at a minimum - adopt the ARCI/RMTC anabolic steroids          was compiled by Racing and Wagering Board staff in consultation with
rule by January 1, 2009 or the date of the state's or track's first graded      the veterinary college at Cornell University and John Wayne, executive
stakes next year. Failure to do so would result in the track losing graded      director of the Delaware Thoroughbred Racing Commission. The Board
stakes races. This year, 37 Grade I Stakes were conducted or are scheduled      considered whether any added costs would be incurred in addition to the
to be conducted in New York State with $16.7 million in purse money.            existing drug and medication testing program. With the exception of the
These races include such hallmark races as the Belmont Stakes, the              cost of testing program, no new costs to the state were identified. There
Travers, and the Wood Memorial. By adopting the model rule, New York            are no new costs to Cornell University. Mr. Wayne said that the cost of a
State will assume a leadership role in this critical regulatory undertaking     triple quadropole mass analyzer system would be $500,000, and that each
and ensure that the problem of steroids will be addressed in a comprehen-       machine needs to be replaced every seven years.
sive and uniform manner. Conversely, New York State will lag behind                5. Local government mandates: None. See above.
other jurisdictions if the rule is not adopted and will be viewed as hinder-       6. Paperwork: None. The existing paperwork system used for the equine
ing the goal of uniformity.                                                     drug and medication system will be used.
   The need to adopt the amendments are also supported by the Thorough-            7. Duplication: None.
bred Safety Committee of the Jockey Club, which in July 2008 endorsed              8. Alternatives:
the model rule restrictions and the imposition of penalties of between one         a) The Board considered plasma samples as an alternative to urine
and three years for the unlawful administration of steroids to a race horse.    sampling. The ARCI/RMTC model rule allows for both. After consulta-
   Since the amendments are based upon a model rule that either is now or       tion with Dr. George Maylin at Cornell University, it was determined that
will be adopted in at least 11 states, the amendments are responsive to the     urine sampling was the preferred method of testing.
call for uniform standards in equine drug testing. In a sport where horses         Board staff considered the impact of banning all steroids, but based
compete in various jurisdictions and the respective equine drug thresholds      upon widespread reliance of the racing industry on the four anabolic
and testing may not always be the same, horsemen and owners have long           steroids for legitimate therapeutic purposes, and the fact that the four
sought uniform thresholds. In cases of therapeutic administration of            steroids would be legitimately administered to horses in other jurisdic-
anabolic steroids, this will allow trainers and veterinarians to calendar ap-   tions, it was determined that the four steroids should be allowed.
propriately and prevent errant overages when the horse is ready to return          The Board did not consider any significant alternatives to the ARCI/
to competition, regardless of which jurisdiction the horse will compete in.     RMTC Model Rule. The model rule would afford uniformity in threshold
Adoption of the anabolic steroids standards would benefit the horseracing       testing levels among the various racing jurisdictions, and the Board could
community in certain cases by eliminating the need to adjust anabolic           not identify any compelling reason to deviate from the standards included
steroid dosages in anticipation of competing in another racing jurisdiction     in the model rule. Failure to amend the existing rule would defeat
with a different threshold.                                                     uniformity and result in the loss of significant stakes racing in New York
   There are four anabolic steroids that have been identified by the ARCI       State.
and RMTC for regulatory control: 16β-hydroxystanozolol, boldenone,                 During the agency's public comment solicitation period, the New York
nandralone and testosterone. There are at least two dozen anabolic steroids     Thoroughbred Horsemen's Association asked whether the Board would
available worldwide. Anabolic steroids have a history of abuse in both hu-      allow for a ‘‘grace’’ period for the implementation of the penalty phase,
man and equine athletes. They are prohibited in most major racing jurisdic-     and what penalties will there be for anabolic steroid violations? Board
tions around the world, including Ireland, England, France, Dubai, Hong         staff is aware of ‘‘grace’’ periods that other states have implemented as
Kong, and Japan. National horse racing organizations, in addition to The        part of their anabolic steroid rules, but such grace periods are ineffectual.
Jockey Club, have sought the regulation of anabolic steroids in horse           The ‘‘grace’’ periods in other states were implemented in order to allow
racing.                                                                         time to withdraw horses from their steroids regimen. This period was
   Most United States racing jurisdictions have not effectively prohibited      roughly between 30 and 45 days. In New York State, trainers receive no-
or regulated the use of anabolic steroids, although some have now enacted       tice that a rule is forthcoming when it will be submitted at the proposed
regulations. The latter include Delaware, Pennsylvania, and California.         rulemaking phase, which provides for a 45-day public comment period
Most of these jurisdictions have adopted either the ARCI or RMTC rule or        and as many as three to four weeks prior to actual adoption of the rule.
variations of these rules. Both the ARCI Model Rule and the RMTC rule           There is ample time for withdrawal within that rulemaking period.
allows the presence in a horse's sample of one of four anabolic steroids        Furthermore, the anabolic steroid rule needs to be in full force by January
below an established level. Any other anabolic steroids are prohibited          1, 2009 to ensure compliance with the Graded Stakes Committee
from administration. The only distinction between the ARCI rule and the         requirement. Any grace period may prove problematic with that deadline.
RMTC rule is that the ARCI establishes threshold levels in both urine and          Regarding prescribed penalties, the Board considered the alternative of

24
NYS Register/October 29, 2008                                                                                           Rule Making Activities
including express penalties in the rule (as is the case in Kentucky's rule      dards for temporary swimming pool enclosures used during the construc-
and the Board's TCO2 rule), but it was determined that anabolic steroid         tion or installation of swimming pools requiring that any such enclosure
penalties should be considered on a case-by-case basis as is currently done     shall sufficiently prevent any access to such swimming pool by any person
with equine drug positives. The Board imposes equine drug penalties             not engaged in the installation or construction of such swimming pool and
based on a trainer's record of violations, Board precedent for similar viola-   shall sufficiently provide for the safety of any such person, and (2) require
tions, and aggravating/mitigating circumstances.                                that any temporary swimming pool enclosure be replaced by a permanent
   9. Federal standards: None.                                                  enclosure which is in compliance with New York state codes, regulations
   10. Compliance schedule: Once adopted, the rule can be implemented           or local laws within ninety days from the issuance of a local building
as soon as the testing equipment is obtained and made operational at            permit or the commencement of the installation of an in ground swimming
Cornell University. The sampling, transportation and adjudication               pool, whichever is later. Section 3 of Chapter 234 of the Laws of 2007
methods used by the Board's existing equine medication testing program          provides that the regulations necessary to implement the new require-
will be utilized.                                                               ments must be adopted prior to the effective date of Chapter 234. The ef-
                                                                                fective date of Chapter 234 was January 14, 2008. A prior emergency rule
Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, Job           similar to this rule was filed on January 14, 2008 and became effective on
Impact Statement                                                                that date. The prior emergency rule has expired. A second emergency rule
   This proposal does not require a Regulatory Flexibility Statement, Ru-       similar to this rule was filed on April 11, 2008 and became effective on
ral Area Flexibility Statement or Job Impact Statement as the amendments        that date. That rule has also expired. A third emergency rule similar to this
merely continue the Board's program governing the administration of             rule was filed on July 10, 2008 and became effective on that date. That
medications to race horses on a time basis prior to participating in a race.    rule has also expired. Adoption of this rule on an emergency basis is nec-
The rule proposal allows the administration of four anabolic steroids           essary to reduce the number of accidental drownings in swimming pools,
within certain thresholds and prohibits the administration of anabolic          and to continue to satisfy the mandate of section 3 of Chapter 234 of the
steroids to horses pursuant to the model rule prescribed by the Association     Laws of 2007.
of Racing Commissioners International and the Racing Medication and
Testing Consortium. The Board's current medication rules for both har-          Subject: Temporary swimming pool enclosures.
ness and thoroughbred racing restrict the use of anabolic steroids, and this    Purpose: Implement Executive Law section 378(14)(c) and (16), as added
rulemaking will bring the rule into uniformity with the ARCI and RMTC           by chapter 234 of the Laws of 2007.
model rules. It is anticipated that the Model Rule will be adopted by other     Public hearing(s) will be held at: 10:00 a.m., December 15, 2008 at 99
racing jurisdictions, and therefore its adoption will make compliance eas-      Washington Ave., Rm. 1140, Albany, NY.
ier and more uniform for owners who race in multiple jurisdictions.             Interpreter Service: Interpreter services will be made available to hearing
Consequently, the rule neither affects small business, local governments,       impaired persons, at no charge, upon written request submitted within rea-
jobs nor rural areas. Authorizing or prohibiting the administration of med-     sonable time prior to the scheduled public hearing. The written request
ications to race horses does not impact upon a small business pursuant to       must be addressed to the agency representative designated in the paragraph
such definition in the State Administrative Procedure Act § 102(8), nor         below.
does it affect employment. The proposal will not impose an adverse eco-         Accessibility: All public hearings have been scheduled at places reason-
nomic impact on reporting, record keeping or other compliance require-          ably accessible to persons with a mobility impairment.
ments on small businesses in rural or urban areas nor on employment
opportunities. The rule does not impose any significant technological           Text of emergency/proposed rule: Part 1228 of Title 19 NYCRR is
changes on the industry for the reasons set forth above, and because the        amended by adding a new section 1228.4 to read as follows:
Board has been previously been monitoring, and regulating the administra-          Section 1228.4. Temporary swimming pool enclosures.
tion of medications to harness and thoroughbred race horses.                       (a) Purpose. This section is intended to implement the provisions of Ex-
   Due to the straightforward nature of the rulemaking, there is no need        ecutive Law sections 378(14)(c) and 378(16), as added by Chapter 234 of
for the development of a small business regulation guide to assist in           the Laws of 2007. (The provisions of Executive Law section 378(14)(c), as
compliance. The rulemaking permits the use of four anabolic steroids in         added by Chapter 75 of the Laws of 2007, as well as the provisions of Ex-
racehorses, and establishes thresholds for permissible levels. If a race-       ecutive Law section 378(14)(b), are implemented by section 1228.2 (Pool
horse tests positive for elevated levels of the permissible anabolic steroids   alarms) of this Part.)
or prohibited anabolic steroids, the owner and trainer will face punitive          (b) Definitions. For the purposes of this section, the following words
action by the Board. Compliance requires the owners and trainers ensure         and terms shall have the following meanings:
that prohibited steroids or excess amounts of authorized steroids are not             (1) The word ‘‘approved’’ means approved by the code enforcement
administered to a racehorse.                                                    official responsible for enforcement and administration of the Uniform
                                                                                Code as complying with and satisfying the purposes of this section.
                                                                                      (2) The term ‘‘complying permanent enclosure’’ means an enclosure
                                                                                which surrounds a swimming pool and which complies with (i) all provi-
                 Department of State                                            sions of the Uniform Code (other than the provisions of subdivision (c) of
                                                                                this section) applicable to swimming pool enclosures, (ii) the provisions of
                                                                                any and all other New York State codes or regulations applicable to swim-
                                                                                ming pool enclosures, and (iii) any and all local laws applicable to swim-
                   EMERGENCY/PROPOSED                                           ming pool enclosures and in effect in the location where the swimming
                       RULE MAKING                                              pool shall have been installed or constructed.
                                                                                      (3) The term ‘‘swimming pool’’ means any structure, basin, chamber
                   HEARING(S) SCHEDULED                                         or tank which is intended for swimming, diving, recreational bathing or
                                                                                wading and which contains, is designed to contain, or is capable of
Temporary Swimming Pool Enclosures                                              containing water more than 24 inches (610 mm) deep at any point. This
                                                                                includes in-ground, above-ground and on-ground pools; indoor pools;
I.D. No. DOS-44-08-00005-EP                                                     hot tubs; spas; and fixed-in-place wading pools.
Filing No. 1005                                                                    (c) Temporary enclosures. During the installation or construction of a
Filing Date: 2008-10-08                                                         swimming pool, such swimming pool shall be enclosed by a temporary
                                                                                enclosure which shall sufficiently prevent any access to the swimming
Effective Date: 2008-10-08                                                      pool by any person not engaged in the installation or construction of the
                                                                                swimming pool, and sufficiently provide for the safety of any such person.
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     Such temporary enclosure may consist of a temporary fence, a permanent
cedure Act, NOTICE is hereby given of the following action:                     fence, the wall of a permanent structure, any other structure, or any
Proposed Action: Addition of section 1228.4 to Title 19 NYCRR.                  combination of the foregoing, provided all portions of the temporary
                                                                                enclosure shall be not less than four (4) feet high, and provided further
Statutory authority: Executive Law, sections 377 and 378; and L. 2007,          that all components of the temporary enclosure shall have been approved
ch. 234, section 3                                                              as sufficiently preventing access to the swimming pool by any person not
Finding of necessity for emergency rule: Preservation of public safety.         engaged in the installation or construction of the swimming pool, and as
Specific reasons underlying the finding of necessity: This rule is adopted      sufficiently providing for the safety of all such persons. Such temporary
on an emergency basis to preserve public safety and because time is of the      enclosure shall remain in place throughout the period of installation or
essence. Executive Law sections 378(14)(c) and 378(16), as added by             construction of the swimming pool, and thereafter until the installation or
Chapter 234 of the Laws of 2007, provide that the State Uniform Fire            construction of a complying permanent enclosure shall have been
Prevention and Building Code (the Uniform Code) must (1) include stan-          completed.

                                                                                                                                                         25
Rule Making Activities                                                                                    NYS Register/October 29, 2008
   (d) Permanent enclosures. A temporary swimming pool enclosure                   The Legislative objective sought to be achieved by this rule is a
described in subdivision (c) of this section shall be replaced by a comply-     reduction in the number of accidental drownings in swimming pools
ing permanent enclosure. The installation or construction of the comply-        in this State.
ing permanent enclosure must be completed within ninety days after the
later of                                                                           3. NEEDS AND BENEFITS:
      (1) the date of issuance of the building permit for the installation or      In the memorandum accompanying the bill which became Chapter
construction of the swimming pool or                                            234 of the Laws of 2007, the Legislature stated as justification for the
      (2) the date of commencement of the installation or construction of       bill:
the swimming pool; provided, however, that if swimming pool is installed
or constructed without the issuance of a building permit, the installation         ‘‘According to a 2004 study by the National SAFE KIDS Cam-
or construction of the complying permanent enclosure must be completed          paign, drowning is the second leading cause of injury-related death
within ninety days after the date of commencement of the installation or        among children ages 1 to 14. In 2001, 859 children under age 14 died
construction of the swimming pool. Nothing in this subdivision shall be         from drowning, and in 2002, an estimated 2,700 children under age 14
construed as permitting the installation or construction of a swimming          were treated in hospital emergency rooms for near-drowning. Drown-
pool without the issuance of a building permit if such a building permit is     ing can occur in only one inch of water. A child loses consciousness
required by any statute, rule, regulation, local law or ordinance relating      after two minutes of being submerged, and permanent brain damage
to the administration and enforcement of the Uniform Code with respect
to such swimming pool.                                                          occurs after only four to six minutes.
   (e) Extensions. Upon application of the owner of a swimming pool, the           ‘‘The health effects of near-drowning can also be severe, including
governmental entity responsible for administration and enforcement of the       permanent neurological disability, and psychological and emotional
Uniform Code with respect to such swimming pool may extend the time             impacts. The financial impacts on the child's family are also signifi-
period provided in subdivision (d) of this section for completion of the in-    cant, with costs of $75,000 for initial treatment, $180,000 per year for
stallation or construction of the complying permanent enclosure for good        long-term care, and a lifetime cost of over $4.5 million per child. Of
cause, including, but not limited to, adverse weather conditions delaying       all drownings reviewed by SAFE KIDS, 39 percent occurred in pools.
construction.
   (f) Exceptions. An above-ground hot tub or spa equipped with a safety           ‘‘Studies have shown that proper fencing could reduce the number
cover classified by Underwriters Laboratory, Inc. (or other approved in-        of deaths caused by drowning and near-drownings that involve chil-
dependent testing laboratory) to reference standard ASTM F1346 (2003),          dren by 50 to 90 percent.
entitled ‘‘Standard Performance Specification for Safety Covers and                ‘‘In one tragic incident on May 1, 2005, Matthew Lenz, age 2 1/2 of
Labeling Requirements for All Covers for Swimming Pools, Spas and Hot
Tubs,’’ published by ASTM International, 100 Barr Harbor Drive, West            Craryville in Columbia County, lost his life after wandering onto a
Conshohocken, PA 19428, shall be exempt from the requirements of                neighbor's property with an in-ground swimming pool that had no
subdivisions (c) and (d) of this section, provided that such safety cover is    fence. Had the pool been properly secured by fencing, as required by
in place during the period of installation or construction of such hot tub or   the State Residential Code section AG 105, Matthew's life may have
spa. The temporary removal of a safety cover as required to facilitate the      been spared.
installation or construction of a hot tub or spa during periods when at            ‘‘At present, New York's residential codes pertaining to pool
least one person engaged in the installation or construction of the hot tub     enclosures comply and surpass federal code. On occasion however,
or spa is present shall not invalidate the exception provided in this
subdivision.                                                                    fencing is not erected at all, or some pool owners rely on temporary
                                                                                fencing for an inordinate amount of time. While municipal building
This notice is intended: to serve as both a notice of emergency adoption
and a notice of proposed rule making. The emergency rule will expire            departments are charged with the responsibility of inspecting pool
January 5, 2009.                                                                enclosures, they are reliant on pool owners to seek building permits
Text of rule and any required statements and analyses may be obtained           and, at times, never notified that a pool has been installed.
from: Raymond Andrews, Department of State, 99 Washington Ave.,                    ‘‘Neither current statute nor rules and regulations pertaining to
Albany,        NY        12231-001,       (518)       474-4073,       email:    swimming pool enclosures address the length of time a temporary
Raymond.Andrews@dos.state.ny.us                                                 fence may be in place.’’
Data, views or arguments may be submitted to: Same as above.                       This rule making amends the Uniform Code by adding a new provi-
Public comment will be received until: Five days after the last scheduled       sion (19 NYCRR section 1228.4) which requires that a swimming
public hearing.                                                                 pool be enclosed by a temporary enclosure during the installation or
Regulatory Impact Statement                                                     construction of the pool; requires that such temporary enclosure suf-
   1. STATUTORY AUTHORITY:                                                      ficiently prevent access to the swimming pool by any person not
   Executive Law section 377(1) authorizes the State Fire Prevention            engaged in the installation or construction of the swimming pool, and
and Building Code Council to periodically amend the provisions of               sufficiently provide for the safety of any such person; and requires
the New York State Uniform Fire Prevention and Building Code                    that such temporary enclosure be replaced by a permanent enclosure
(‘‘Uniform Code’’). Executive Law section 378(1) directs that the               that complies with the requirements of existing laws and regulations
Uniform Code shall address standards for safety and sanitary                    within 90 days of issuance of the building permit or commencement
conditions. Executive Law section 378(16), as added by Chapter 234              of installation or construction of the pool. By requiring the use of such
of the Laws of 2007, requires that the Uniform Code include standards           temporary enclosures during installation / construction, and by requir-
for temporary swimming pool enclosures used during the installation             ing the replacement of such temporary enclosures with permanent
or construction of swimming pools requiring that any such enclosure             enclosures within the stated time period, this rule should provide the
shall sufficiently prevent any access to such swimming pool by any              benefit intended by the Legislature: a reduction in the number of ac-
person not engaged in the installation or construction of such swim-            cidental drownings.
ming pool and shall sufficiently provide for the safety of any such                4. COSTS:
person. Executive Law section 378(14)(c), as added by Chapter 234                  The initial capital costs of complying with the rule will include the
of the Laws of 2007, requires that the Uniform Code provide that any            cost of purchasing and installing the temporary enclosure. The cost of
temporary swimming pool enclosure be replaced by a permanent                    complying with this rule in connection with the construction or instal-
enclosure which is in compliance with New York state codes, regula-             lation of any particular pool will depend on the size of the temporary
tions or local laws within ninety days from the issuance of a local             enclosure that must be used to enclose such pool. Temporary fences
building permit or the commencement of the installation of an in-               that would satisfy the requirements of this rule are relatively inexpen-
ground swimming pool, whichever is later. Executive Law section                 sive, and are available at most lumber and hardware type stores. The
378(14)(c), as added by Chapter 234 of the Laws of 2007, also                   fencing can include the plastic orange type with wood or metal stakes
provides that a local building department may issue a waiver to allow           or the green wire ‘‘yard guard fence’’ type. Wooden snow fencing can
an extension of such ninety day time period for good cause, including           also be used. The Department of State estimates that the cost of enclos-
but not limited to adverse weather conditions delaying construction.            ing an average residential pool (16 foot by 32 foot), including the cost
   2. LEGISLATIVE OBJECTIVES:                                                   of the fencing material, the stakes, and the labor, will be as follows:

26
NYS Register/October 29, 2008                                                                                         Rule Making Activities

orange fence material, approximately $225 to $275; green wire ‘‘yard            sure of protection against children and others falling into the hole dur-
guard’’ fence, approximately $600 to $650; and wooden snow fenc-                ing the installation / construction period. No other significant alterna-
ing, approximately $400 to $450. The Department of State estimates              tives to this rule were considered, since other alternatives would not
that between 25% and 50% of the material used to construct a                    provide the safety protections contemplated by Executive Law sec-
temporary pool enclosure can be reused. A business that installs pools          tions 378(14)(c) and 378(16), as added by Chapter 234 of the Laws of
on a regular basis would presumably reuse temporary fence materials             2007.
to the maximum extent possible, which should reduce the average cost
                                                                                   9. FEDERAL STANDARDS:
of per pool installation.
                                                                                   There are no standards of the Federal Government which address
   Regulated parties will be able to minimize the cost of complying
                                                                                the subject matter of the rule.
with this rule by constructing as much of the permanent enclosure as
can be installed without restricting pool construction or installation             10. COMPLIANCE SCHEDULE:
activities, and by using temporary enclosure components to enclose                 Regulated persons will be able to achieve compliance with the rule
only the remainder of the pool area during the construction/installation        in the normal course of the installation or construction of a swimming
period.                                                                         pool.
   Since this rule requires the temporary enclosure to be replaced with         Regulatory Flexibility Analysis
a permanent enclosure within 90 days, and since the permanent                      1. EFFECT OF RULE:
enclosure mentioned in this rule is required by existing laws and rules,           This rule will apply to any small business and any local government
and not by this rule, there should be no recurring annual costs of              that installs or constructs a swimming pool. The State Fire Prevention
complying with this rule.                                                       and Building Code Council (the Code Council) and the Department of
   There are no costs to the Department of State for the implementa-            State are unable to estimate the number of small businesses and local
tion of the rule. The Department of State is not required to develop            governments that own or operate swimming pools; however, it is
any additional regulations or develop any programs to implement the             believed that a majority of the non-residential swimming pools in this
rule.                                                                           State are owned or operated by small businesses or local governments.
   There are no costs to New York State or local governments for the               Small businesses that install or construct swimming pools for oth-
implementation of the rule; provided, however, that if the State or any         ers will also be affected by this rule.
local government installs or constructs a swimming pool, it will be                Since this rule adds a provisions to the Uniform Fire Prevention and
required to install the temporary enclosure as required by this rule,           Building Code (the Uniform Code), each local government that is
and to replace such temporary enclosure with a permanent enclosure              responsible for administering and enforcing the Uniform Code will be
within the time period specified by this rule. In addition, since this          affected by this rule. The State Fire Prevention and Building Code
rule adds provisions to the Uniform Code, in a situation where the              Council (the Code Council) and the Department of State estimate that
State or a local government is responsible for administration and               approximately 1,604 local governments (mostly cities, towns and vil-
enforcement of the Uniform Code with respect to the installation or             lages, as well as several counties) are responsible for administering
construction of a swimming pool, the State or such local government             and enforcing the Uniform Code.
will be required to consider the requirements added by this rule in                2. COMPLIANCE REQUIREMENTS:
reviewing plans and performing inspections; however, it is anticipated
that this will not have a significant impact on the review and/or inspec-          No reporting or record keeping requirements are imposed upon
tion process.                                                                   regulated parties by the rule.
   5. PAPERWORK:                                                                   Small businesses and local governments that install or construct
                                                                                swimming pools will be required to erect a temporary enclosure
   This rule imposes no new reporting requirements. No new forms or             around the pool during the installation / construction period, and to
other paperwork will be required as a result of this rule.                      replace the temporary enclosure with a permanent enclosure (as
   6. LOCAL GOVERNMENT MANDATES:                                                required by existing laws and regulations) within 90 days after issu-
   This rule does not impose any new program, service, duty or                  ance of the building permit or commencement of installation or
responsibility upon any county, city, town, village, school district, fire      construction. Local governments that enforce the Uniform Code will
district or other special district, except as follows: First, any county,       be required to consider the requirements of this rule when reviewing
city, town, village, school district, fire district or other special district   plans for installation or construction of a pool by any person or entity,
that installs or constructs a swimming pool will be required to comply          public or private, and when inspecting work.
with this rule. Second, cities, towns and villages (and sometimes coun-            3. PROFESSIONAL SERVICES:
ties) are charged by Executive Law section 381 with the responsibility             No professional services will be required to comply with the rule.
of administering and enforcing the Uniform Code; since this rule adds
provisions to the Uniform Code, the aforementioned local govern-                   4. COMPLIANCE COSTS:
ments will be responsible for administering and enforcing the require-             The initial capital costs of complying with the rule will include the
ments of the rule along with all other provisions of the Uniform Code.          cost of purchasing and installing the temporary enclosure. The cost of
   7. DUPLICATION:                                                              complying with this rule in connection with the construction or instal-
                                                                                lation of any particular pool will depend on the size of the temporary
   The rule does not duplicate any existing Federal or State                    enclosure that must be used to enclose such pool. Temporary fences
requirement.                                                                    that would satisfy the requirements of this rule are relatively inexpen-
   8. ALTERNATIVES:                                                             sive, and are available at most lumber and hardware type stores. The
   This rule provides an exemption from the temporary enclosure                 fencing can include the plastic orange type with wood or metal stakes
requirement for above-ground spas and hot tubs equipped with a safety           or the green wire ‘‘yard guard fence’’ type. Wooden snow fencing can
cover. The alternative of not providing such an exemption was                   also be used. The Department of State estimates that the cost of enclos-
considered, but rejected, because hot tubs and spas equipped with a             ing an average residential pool (16 foot by 32 foot), including the cost
safety cover are exempt from the permanent enclosure requirements,              of the fencing material, the stakes, and the labor, will be as follows:
and it would be illogical to require such hot tubs and spas to be en-           orange fence material, approximately $225 to $275; green wire ‘‘yard
closed with a temporary enclosure during the installation / construc-           guard’’ fence, approximately $600 to $650; and wooden snow fenc-
tion period when they are not required to be enclosed with a perma-             ing, approximately $400 to $450. The Department of State estimates
nent enclosure after installation / construction is complete. The               that between 25% and 50% of the material used to construct a
alternative of providing an exemption for in-ground hot tubs and spas           temporary pool enclosure can be reused. A business that installs pools
was considered and rejected, since there would be an unprotected and            on a regular basis would presumably reuse temporary fence materials
uncovered hole in the ground during the installation / construction of          to the maximum extent possible, which should reduce the average cost
such a hot tub or spa, and a temporary enclosure would provide a mea-           of per pool installation. Regulated parties will be able to minimize the

                                                                                                                                                     27
Rule Making Activities                                                                                 NYS Register/October 29, 2008

cost of complying with this rule by constructing as much of the per-        replaced with a permanent enclosure as required by existing laws and
manent enclosure as can be installed without restricting pool installa-     regulations within 90 days after issuance of the building permit or
tion / construction activities, and by using temporary enclosure            commencement of installation or construction. No professional ser-
components to enclose only the remainder of the pool area during the        vices are likely to be needed in a rural area in order to comply with
construction / installation period.                                         such requirements.
   Since this rule requires the temporary enclosure to be replaced with        3. COMPLIANCE COSTS.
a permanent enclosure within 90 days after issuance of the building            The initial capital costs of complying with the rule will include the
permit or commencement of installation of the pool, and since the per-      cost of purchasing and installing the temporary enclosure. The cost of
manent enclosure mentioned in this rule is required by existing laws        complying with this rule in connection with the construction or instal-
and rules, and not by this rule, there should be no recurring annual        lation of any particular pool will depend on the size of the temporary
costs of complying with this rule.                                          enclosure that must be used to enclose such pool. Temporary fences
   5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:                               that would satisfy the requirements of this rule are relatively inexpen-
   It is economically and technologically feasible for regulated parties    sive, and are available at most lumber and hardware type stores. The
to comply with the rule. No substantial capital expenditures are            fencing can include the plastic orange type with wood or metal stakes
imposed and no new technology need be developed for compliance.             or the green wire ‘‘yard guard fence’’ type. Wooden snow fencing can
                                                                            also be used. The Department of State estimates that the cost of enclos-
   6. MINIMIZING ADVERSE IMPACT:                                            ing an average residential pool (16 foot by 32 foot), including the cost
   The rule minimizes any potential adverse economic impact on              of the fencing material, the stakes, and the labor, will be as follows:
regulated parties (including small businesses or local governments) by      orange fence material, approximately $225 to $275; green wire ‘‘yard
allowing use of any type of temporary enclosure, provided that it is (1)    guard’’ fence, approximately $600 to $650; and wooden snow fenc-
at least 4 feet high and (2) approved by the code enforcement official      ing, approximately $400 to $450. The Department of State estimates
as sufficiently preventing access to the swimming pool by any person        that between 25% and 50% of the material used to construct a
not engaged in the installation or construction of the swimming pool,       temporary pool enclosure can be reused. A business that installs pools
and as sufficiently providing for the safety of any such person; by         on a regular basis would presumably reuse temporary fence materials
permitting all or any part of the permanent enclosure (as required by       to the maximum extent possible, which should reduce the average cost
existing laws and regulations) to be used as all or part of the temporary   of per pool installation. Regulated parties will be able to minimize the
enclosure, thereby permitting regulated parties to minimize the             cost of complying with this rule by constructing as much of the per-
amount of temporary enclosure components required during construc-          manent enclosure as can be installed without restricting pool installa-
tion; and by providing an exemption from the temporary enclosure            tion / construction activities, and by using temporary enclosure
                                                                            components to enclose only the remainder of the pool area during the
requirements for above-ground hot tubs and spas equipped with a             construction / installation period. Any variation in such costs for dif-
safety cover.                                                               ferent types of public and private entities in rural areas will be attrib-
   This rule implements Executive Law sections 378(14)(c) and               utable to the size and configuration of the swimming pools owned or
378(16), as added by Chapter 234 of the Laws of 2007. Those statutes        operated by such entities, and not to nature or type of such entities or
do not authorize the establishment of differing compliance require-         to the location of such entities in rural areas.
ments or timetables with respect to swimming pools owned or oper-              Since this rule requires the temporary enclosure to be replaced with
ated by small businesses or local governments.                              a permanent enclosure within 90 days, and since the permanent
   Except for the exemption for above-ground hot tubs and spas              enclosure mentioned in this rule is required by existing laws and rules,
equipped with a safety cover, providing exemptions from coverage by         and not by this rule, there should be no recurring annual costs of
the rule was not considered because such exemptions would endanger          complying with this rule.
public safety.                                                                 4. MINIMIZING ADVERSE IMPACT.
   7. SMALL BUSINESS AND LOCAL GOVERNMENT                                      Executive Law sections 378(14)(c) and 378(16) make no distinc-
PARTICIPATION:                                                              tion between swimming pools located in rural areas and swimming
   On December 6, 2007, the Department of State notified code               pools located in non-rural areas. However, the economic impact of
                                                                            this rule in rural areas will be no greater than the economic impact of
enforcement officials throughout the State and other interested parties     this rule in non-rural areas, and the ability of individuals or public or
of the new requirements to be imposed by this rule by means of a no-        private entities located in rural areas to comply with the requirements
tice in Building New York, a monthly electronic news bulletin cover-        of this rule should be no less than the ability of individuals or public
ing topics related to the Uniform Code and the construction industry        or private entities located in non-rural areas.
which is prepared by the Department of State and currently distributed         Executive Law sections 378(14)(c) and 378(16) do not authorize
to approximately 7,000 subscribers representing all aspects of the          the establishment of differing compliance requirements or timetables
construction industry. The notice was also posted on the Department         in rural areas.
of State's website. The notice invited interested parties to provide
                                                                               The rule provides exemptions from the temporary enclosure
comments.                                                                   requirements for above-ground hot tubs and spas equipped with safety
Rural Area Flexibility Analysis                                             covers because such hot tubs and spas are exempt from permanent
   1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.                           enclosure requirements. Providing additional exemptions from cover-
   This rule implements the provisions of Executive Law sections            age by the rule was not considered because such exemptions would
378(14)(c) and 378(16), as added by Chapter 234 of the Laws of 2007,        endanger public safety.
by adding a provision to the Uniform Fire Prevention and Building              5. RURAL AREA PARTICIPATION.
Code (‘‘Uniform Code’’) requiring that swimming pools be enclosed              On December 6, 2007, the Department of State notified code
by a temporary enclosure during the period of installation or construc-     enforcement officials throughout the State, including those in rural ar-
tion of the pool, and requiring that such temporary enclosure be            eas, and other interested parties of the new requirements to be imposed
replaced with a permanent enclosure within 90 days. Since the               by this rule by means of a notice in Building New York, a monthly
Uniform Code applies in all areas of the State (other than New York         electronic news bulletin covering topics related to the Uniform Code
City), this rule will apply in all rural areas of the State.                and the construction industry which is prepared by the Department of
   2. REPORTING, RECORDKEEPING AND OTHER COMPLI-                            State and currently distributed to approximately 7,000 subscribers
ANCE REQUIREMENTS.                                                          representing all aspects of the construction industry. The notice was
   The rule will not impose any reporting or recordkeeping                  also posted on the Department of State's website. The notice invited
requirements. The rule will impose the following compliance                 interested parties to provide comments.
requirements: swimming pools will be required to be enclosed by             Job Impact Statement
temporary enclosures during the period of installation or construction        The Department of State and the State Fire Prevention and Building
of the pool, and such temporary enclosures will be required to be           Code Council have concluded after reviewing the nature and purpose

28
NYS Register/October 29, 2008                                                                                          Rule Making Activities

of the rule that it will not have a ‘‘substantial adverse impact on jobs       that the proposed rule was not necessary. After considering these com-
and employment opportunities’’ (as that term is defined in section             ments, the Department of State determined that the rule making is neces-
201-a of the State Administrative Procedure Act) in New York.                  sary in order to adequately protect the public health, safety and welfare.
                                                                                  The Department of State has not received any public comments since
   The rule adds a requirement to the Uniform Fire Prevention and              the rule was proposed.
Building Code (‘‘Uniform Code’’) that swimming pools be enclosed
by a temporary enclosure during the period of installation or construc-                         PROPOSED RULE MAKING
tion of the pool, and that such temporary enclosure be replaced with a                         NO HEARING(S) SCHEDULED
permanent enclosure (as required by existing laws and regulations)
within 90 days. This provision is added to the Uniform Code pursuant           Qualifying School Requirements for Bail Enforcement
to the requirements of Executive Law sections 378(14)(c) and 378(16),
as added by Chapter 234 of the Laws of 2007.                                   I.D. No. DOS-44-08-00001-P
   Regulated parties may comply with this rule by installing a
temporary enclosure during installation or construction of the pool.           PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
Temporary fences that would satisfy the requirements of this rule are          cedure Act, NOTICE is hereby given of the following proposed rule:
relatively inexpensive, and are available at most lumber and hardware          Proposed Action: Addition of Part 171 to Title 19 NYCRR.
type stores. The fencing can include the plastic orange type with wood         Statutory authority: General Business Law, section 72
or metal stakes or the green wire ‘‘yard guard fence’’ type. Wooden            Subject: Qualifying school requirements for bail enforcement.
snow fencing can also be used. The Department of State estimates that          Purpose: To set forth requirements for schools to teach qualifying educa-
the cost of enclosing an average residential pool (16 foot by 32 foot),        tion to prospective bail enforcement agents.
including the cost of the fencing material, the stakes, and the labor,         Text of proposed rule: A new Part 171 is added to Title 19 NYCRR to
will be as follows: orange fence material, approximately $225 to $275;         read as follows:
green wire ‘‘yard guard’’ fence, approximately $600 to $650; and                  Qualifying School Requirements for Bail Enforcement
wooden snow fencing, approximately $400 to $450. The Department                   171.1 Approved Entities
of State estimates that between 25% and 50% of the material used to               Courses of instruction may be given by any college or university ac-
construct a temporary pool enclosure can be reused. A business that            credited by the Commissioner of Education of the State of New York, any
installs pools on a regular basis would presumably reuse temporary             public and/or private vocational school, any bail enforcement profes-
                                                                               sional society or organization.
fence materials to the maximum extent possible, which should reduce               171.2 Application for approval of course of study
the average cost of per pool installation. Regulated parties will be              An application for approval to conduct a 25 hour bail enforcement
permitted to use components of the permanent enclosure that will be            course shall be made 60 days before the proposed course is to begin and
required by existing laws and regulations after installation or construc-      shall be submitted on a form prescribed by the Department. The applica-
tion is complete as all or part of the temporary enclosure during the in-      tion shall include the following:
stallation / construction period. This would permit regulated parties to          (a) The name and business address of the school;
minimize the cost of the temporary enclosure by constructing as much              (b) The name and business address of the owners;
of the permanent enclosure as can be installed without restricting pool              (1) If the owner is an individual, the name and business address of
installation / construction activities, and enclosing only the remaining       the individual;
portion of the pool area with a temporary enclosure.                                 (2) If the owner is a partnership, the name and business address of
   It is anticipated that the cost of providing the temporary enclosures       each partner;
required by this rule will be insignificant when compared to the over-               (3) If the owner is a corporation, the name and business address of
all cost constructing or installing a swimming pool. Accordingly, it is        each shareholder owning five per cent or more of the corporate stock;
                                                                                     (4) If the owner is a limited liability company, the name and business
anticipated that this rule will have no significant impact on the number       address of each member of the limited liability company;
of pools installed or constructed in this State, and that this rule will not         (5) If the owner is a not-for- profit corporation or education corpora-
have a ‘‘substantial adverse impact on jobs and employment                     tion, the name and business address of the corporation's president or
opportunities.”                                                                chief executive officer;
                                                                                  (c) The name, business address and telephone number of the education
                     NOTICE OF ADOPTION                                        coordinator who will be responsible for compliance with the rules
                                                                               contained in this Part;
Installation, Servicing or Maintaining of Security or Fire Alarm                  (d) The locations where classes will be conducted;
Systems                                                                           (e) A description of any materials that will be distributed during the
                                                                               course;
I.D. No. DOS-32-08-00006-A                                                        (f) A copy of any book(s) that will be used for the course;
Filing No. 1003                                                                   (g) A course outline including the instructional time for each subject
Filing Date: 2008-10-08                                                        being presented; and
                                                                                  (h) Lesson plans along with learning objectives for the established
Effective Date: 2009-06-01                                                     curriculum.
                                                                                  171.3 Subjects of study for bail enforcement agents
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                       The following are the subject to be included in the 25 hour course of
cedure Act, NOTICE is hereby given of the following action:                    instruction for bail enforcement agents. All approved schools must use
Action taken: Amendment of sections 196.1, 196.2, 196.8 and 196.10 of          this course outline in their programs.
Title 19 NYCRR.                                                                   (a) New York State Licensing Law and Regulations
                                                                                  (b) Liability Issues
Statutory authority: General Business Law, section 69-n                              (1) Civil;
Subject: Installation, servicing or maintaining of security or fire alarm            (2) Criminal;
systems.                                                                             (3) Search or seizure of bailee/fugitive, and
Purpose: To add an additional education module which must be satisfac-               (4) Entering homes, businesses and vehicles;
torily completed prior to licensure.                                              (c) Rights of bailee/fugitive:
Text or summary was published in the August 6, 2008 issue of the Regis-              (1) Taylor v. Taintor;
ter, I.D. No. DOS-32-08-00006-P.                                                     (2) Rights of accused under State Law;
                                                                                     (3) Rights of accused under Federal Law;
Final rule as compared with last published rule: No changes.                         (4) Extradition;
Text of rule and any required statements and analyses may be obtained             (d) Criminal and civil law relating to bail bonds;
from: Whitney A. Clark, NYS Department of State, Division of Licensing            (e) Basic concepts of criminal justice law;
Services, 80 South Swan Street, P.O. Box 22001, Albany, NY 12231,                 (f) Ethics and professionalism; and
(518) 473-2728, email: whitney.clark@dos.state.ny.us                              (g) Report writing.
Assessment of Public Comment                                                      171.4 Attendance
   Prior to proposing the rule, the Department of State solicited comments        To receive credit, a student must complete the entire 25 hour course of
from licensed alarm installers. Fourteen comments were receiving arguing       instruction.

                                                                                                                                                        29
Rule Making Activities                                                                                        NYS Register/October 29, 2008
   171.5 Certificate of successful completion                                     This action was not under consideration at the time this agency's regula-
   Upon satisfactory completion of the 25 hour course of instruction by a         tory agenda was submitted.
student, the school must give the student a certificate of completion which       Regulatory Impact Statement
shall be signed and dated by the school's course coordinator. The certifi-           1. Statutory authority:
cate must include the following information:                                         General Business Law section 72 authorizes the Department of State to
   (a) The name of the school;                                                    prescribe the 25 hours of training required for licensure as a bail enforce-
   (b) The title of the course, which shall be ‘‘Bail Enforcement Course,         ment agent and to approve education providers to offer said training.
25 hours’’;                                                                          2. Legislative objectives:
   (c) The school's code number;                                                     General Business Law, Article 7, requires the Department of State to
   (d) A statement that the student, who shall be named, has satisfactorily       license and regulate bail enforcement agents. The statute requires prospec-
completed a 25 hour course of study in bail enforcement subjects approved         tive licensees to complete qualifying education prior to obtaining a license.
by the Secretary of State in accordance with Article 7 of the General Busi-          3. Needs and benefits:
ness Law; and                                                                        The proposed rule making will protect consumers and meet the legisla-
   (e) The date on which the student completed the course.                        tive intent in enacting Article 7. By setting forth the procedure to be fol-
   171.6 Faculty                                                                  lowed in obtaining approval from the Department of State to offer the
   An individual who wishes to teach any part of the 25 hour course shall         qualifying course, the content of the course itself and the administrative
submit a resume to the Department of State along with evidence that the           requirements for offering the course, licensees and education providers
applicant meets one of the following qualifications:                              will be provided with guidance and the public will be protected by ensur-
   (a) Is an attorney;                                                            ing that licensed bail enforcement agents have obtained proper education
   (b) Is a police instructor;                                                    prior to being licensed by the State.
   (c) Is an FBI instructor;                                                         4. Costs:
   (d) Has a teacher's certificate from the New York State Education                 a. Costs to regulated parties:
Department;                                                                          The rule making will not impose any new costs on bail enforcement
   (e) Has 5 years of full-time experience as a police officer;                   licensees other than the cost of taking the 25 hour qualifying course. Prior
   (f) Has a four-year college degree majoring in criminal justice; or            to the proposed regulation, educational providers were routinely offering
   (g) Has five years, full-time experience as a licensed private investiga-      the course in its proposed 25 hour format for costs ranging from $500-
tor with significant bail enforcement experience.                                 $700. It is anticipated that providers will continue to offer the 25 hour
   171.7 Retention of Records                                                     course for a similar cost.
   Schools conducting approved courses shall retain records for students             b. Costs to the Department of State:
completing the school's courses for a period of three years after comple-            The rule does not impose any costs to the agency, the state or local
tion of the course. Such records shall, at all times during that period, be       government for the implementation and continuation of the rule.
available for inspection by a duly authorized representative of the Depart-          5. Local government mandates:
ment of State.                                                                       The rule does not impose any program, service, duty or responsibility
   171.8 Lists                                                                    upon any county, city, town, village, school district or other special
   Within 30 days of the completion of a 25 hour course, a school must            district.
submit to the Department of State a list of the names and addresses of               6. Paperwork:
each student who successfully completed the course.                                  The rule does not impose any new paperwork requirements insofar as
   171.9 Facilities                                                               prospective licensees are already required to satisfactorily complete
   Each 25 hour course shall be presented at a facility as necessary to           qualifying education.
properly present the course.                                                         7. Duplication:
   171.10 Auditing                                                                   This rule does not duplicate, overlap or conflict with any other state or
   A duly authorized representative of the Department of State may audit          federal requirement.
any course, verify attendance and inspect the records of attendance, at              8. Alternatives:
any time during its presentation and for a period of three years after the           The Department of State contemplated not proposing this rule making.
completion of the course.                                                         To do so, however, would result in education providers not being made
   171.11 Suspensions and denials of course approval                              aware of the requirements for submitting and obtaining course approval
   (a) Within 60 days after receipt of the application for approval of a 25       through the Department of State. It was determined that the benefit of
hour course, the Department of State shall inform the school whether the          providing guidelines to the regulated public outweighed the option of not
course has been approved or denied, or whether additional information is          proposing this rule making.
needed.                                                                              The Department of State currently has ten approved providers. These
   (b) The Department of State may deny, suspend or revoke the approval           providers have been offering the proposed 25 hour course in its proposed
of a bail enforcement course or instructor if it is determined that either is     format. No comments have been received from these or other providers
not in compliance with Article 7 of the General Business Law or the rules         regarding alternatives to the proposed rule. The lack of negative comment
promulgated thereunder, or if it is determined that either has not                from providers indicates that the proposed rule provides necessary guid-
adequately presented the course material set forth in section 171.3 of this       ance with content that is acceptable to the industry.
Part.                                                                                9. Federal standards:
   171.12 Credit for equivalent education in the bail enforcement field              There are no federal standards regulating the registration of bail
   The Department of State may grant credit for equivalent education if           enforcement licensees. Consequently, this rule does not exceed any exist-
the applicant provides evidence, satisfactory to the Department of State,         ing federal standard.
of having completed a course of study at an accredited college or                    10. Compliance schedule:
university, which course of study includes course work substantially simi-           The rule making will be effective as of the date of adoption. Prospec-
lar to that set forth in section 171.3 of this Part. To qualify for credit, the   tive licensees are already required to take the 25 hour qualifying course
equivalent education may not be less than 25 hours.                               and will therefore be able to comply with this rule as of its effective date.
   171.13 Registration Period and Fees
   Each registration or renewal period for an approved course shall be 12         Regulatory Flexibility Analysis
months or a part thereof. The registration or renewal period shall com-              1. Effect of rule:
mence on January 1st or on the date on which the course is approved and              The rule will apply to prospective bail enforcement agents. Article 7 of
shall expire on December 31st of the same year. The fee for registering a         the General Business Law requires that applicants for licensure as a bail
course with the Department of State shall be $25.00 for each registration         enforcement agent complete 25 hours of qualifying education. This rule
period. Those registrants who wish to provide courses at locations other          making merely codifies the procedure to obtain Department of State ap-
than the primary location listed on their initial application shall pay a fee     proval to offer the qualifying course, the content of the course itself and
of $25.00 for each additional location.                                           the procedures for administering the course.
                                                                                     The rule does not apply to local governments.
Text of proposed rule and any required statements and analyses may be                2. Compliance requirements:
obtained from: Whitney A. Clark, NYS Department of State, Division of                Insofar as the existing statute already require qualifying education for
Licensing Services, 80 South Swan Street, P.O. Box 22001, Albany, NY              licensure, the proposed rule making will not add any new reporting,
12231, (518) 473-2728, email: whitney.clark@dos.state.ny.us                       record-keeping or other compliance requirements for licensees. The rule
Data, views or arguments may be submitted to: Same as above.                      will add new reporting, record-keeping and compliance requirements for
Public comment will be received until: 45 days after publication of this          education providers who wish to offer the 25 hour qualifying education
notice.                                                                           course. Providers are already required to obtain approval to offer the

30
NYS Register/October 29, 2008                                                                                            Rule Making Activities
course from the Department of State. The rule sets forth the information        Statutory authority: Tax Law, sections 171, subd. First, 1116(b)(1),
required on the application for said approval, specifies the content of the     1142(1), (8) and 1250 (not subdivided); and L. 2008, ch. 57, part KK-1
course, and sets forth administration procedures for offering the course        Subject: Taxable sales by certain exempt organizations.
including the facility, faculty and attendance requirements, issuing certifi-   Purpose: To provide rules regarding sales tax on sales, including auction
cates of course completion, record retention and issuing reports to the
Department of State.                                                            sales, by certain exempt organizations.
   3. Professional services:                                                    Text of proposed rule: Section 1. Paragraph (10) of subdivision (a) of sec-
   Neither licensees nor educational providers will have to rely on any         tion 526.10 of such regulations is amended to read as follows:
new professional services in order to comply with the rule. Article 7 of the          (10) Any organization [that has received an Exempt Organization
General Business Law already requires 25 hours of qualifying education.         Certificate certifying it is exempt from sales and use tax under paragraph
The Department of State has approved approximately 10 providers, all of         (4) or (5) of] or entity described in subdivision (a) of section 1116 of the
whom have submitted course outlines that are in compliance with the             Tax Law[, which] that makes taxable sales [or tangible personal property
course content required by this rule.                                           through a shop or store operated by the organization, or sells food and
   4. Compliance costs:                                                         drink, in the State] described in such section is a vendor.
   The rule making will not result in any compliance costs insofar as pro-         Section 2. Paragraph (1) of subdivision (i) of section 529.7 of such
spective licensees are already required, by the statute, to complete 25         regulations is amended to read as follows:
hours of qualifying education prior to licensure.                                     (1) Except as provided in [paragraphs (2) through (4) of this subdivi-
   5. Economic and technological feasibility:
   It is anticipated that the education providers already approved by the       sion] section 1116 of the Tax Law or other law, sales of tangible personal
Department of State to offer the bail enforcement qualifying course will        property and services by exempt organizations are exempt from the sales
continue to do so. The proposed rule does not involve technology and is         and use tax.
both economically and technologically feasible.                                    Section 3. Paragraph (2) of subdivision (i) of section 529.7 of such
   6. Minimizing adverse economic impact:                                       regulations is renumbered to be subparagraph (i) of such paragraph.
   The Department of State has not identified any adverse economic                 Section 4. Example 1 in subdivision (i) of section 529.7 of such regula-
impact of this rule. The rule does not impose any additional reporting or       tions is amended to read as follows:
record keeping requirements on licensees and merely codifies procedures            ‘‘Example 1:’’ An exempt organization [owning] owns a fleet of
currently being followed by the education providers already approved by         automobiles [decides to sell, at auction,]. It sells a number of the
the Department of State to offer qualifying education for bail enforcement      automobiles at auction. The organization conducts one auction each
agents.                                                                         calendar year, and it is held in its parking lot. The automobiles sold at the
   7. Small business participation:                                             auction are not sold from a shop or store and are not subject to sales or
   The Department of State does not anticipate any objection to the             use tax. See subparagraph (vi) of this paragraph for rules concerning
proposed rule by small businesses insofar as it merely codifies procedures      auctions of this nature.
currently being followed by the education providers already approved by            Section 5. New subparagraphs (ii) through (vii) are added to paragraph
the Department of State to offer qualifying education for bail enforcement      (2) of subdivision (i) of section 529.7 of such regulations, following
agents, many of which are small businesses. The Department of State has         Example 6, to read as follows:
not received any objection to these procedures from education providers.                 (ii) If an exempt organization described in section 1116(a)(4), (5),
The Notice of Proposed Rule Making will be published by the Department          or (6) of the Tax Law operates a shop or store and also makes retail sales
of State in the State Register. The publication of the rule in the State Reg-   of similar (though not necessarily identical) items of tangible personal
ister will provide notice to local governments and notice to small busi-        property by any means other than at its shop or store (such as by remote
nesses of the proposed rule making. Additional comments will be received        means or at an auction), those additional sales are considered to be made
and entertained.                                                                from its shop or store.
Rural Area Flexibility Analysis                                                          (iii) Sales, other than for resale, of the services described in sec-
This rule does not impose any adverse impact on rural areas and does not        tion 1105(b) or section 1105(c)(5) of the Tax Law by an exempt organiza-
impose any new reporting, record-keeping or other compliance require-           tion described in section 1116(a)(4), (5), or (6) of the Tax Law are subject
ments for licensees. The rule will add new reporting, record-keeping and        to tax, whether or not made at a shop or store. These services include the
compliance requirements for education providers who wish to offer the 25        sales of:
hour qualifying education course. Providers are already required to obtain                   (‘‘a’’) gas, electricity, refrigeration, and steam, and gas,
approval to offer the course from the Department of State. The rule merely      electric, refrigeration, and steam services of whatever nature (see section
codifies the procedures already being followed by approved education            1105(b)(1) of the Tax Law and section 527.2 of this Title);
                                                                                            (‘‘b’’) telephony, telegraphy, and telephone and telegraph ser-
providers. The Department of State has not received any objection to these      vices of whatever nature, except sales of interstate and international tele-
procedures from approved providers.                                             phony, telegraphy, and telephone and telegraph services (see section
Job Impact Statement                                                            1105(b)(1) of the Tax Law and section 527.2 of this Title);
The proposed rule will not have a substantial adverse effect on jobs and                    (‘‘c’’) telephone answering services (see sections 1101(b)(13)
employment opportunities for licensed bail enforcement agents insofar as        and 1105(b)(1) of the Tax Law);
Article 7 of the General Business Law already requires that they complete                    (‘‘d’’) prepaid telephone calling services (see sections
25 hours of qualifying education prior to licensure. This rule making           1101(b)(22) and 1105(b)(1) of the Tax Law);
merely codifies the procedure to obtain Department of State approval to                      (‘‘e’’) mobile telecommunications services (see sections
offer the qualifying course, the content of the course itself and the           1101(b)(24) and 1105(b)(2) and (3) of the Tax Law); and
procedures for administering the course.                                                    (‘‘f’’) maintaining, servicing, or repairing real property, prop-
                                                                                erty, or land (see section 1105(c)(5) of the Tax Law and section 527.7 of
                                                                                this Title).
                                                                                         (iv) Retail sales of tangible personal property by an exempt orga-
        Department of Taxation and                                              nization described in section 1116(a)(4), (5), or (6) of the Tax Law are
                                                                                subject to tax if the sales are made with a degree of regularity, frequency,
                Finance                                                         and continuity by remote means. Sales by remote means include, but are
                                                                                not limited to, sales made by telephone, over the Internet, and by mail
                                                                                order.
                                                                                         (v) Retail sales of tangible personal property by lease or rental by
                 PROPOSED RULE MAKING                                           an exempt organization described in section 1116(a)(4), (5), or (6) of the
                NO HEARING(S) SCHEDULED                                         Tax Law are subject to tax, whether or not made at a shop or store.
                                                                                         (vi) For calendar years beginning on or after January 1, 2009, the
                                                                                following provisions apply to sales made at auction events other than by
Taxable Sales by Certain Exempt Organizations                                   remote means (‘‘i.e.,’’ bidders or their representatives are physically
I.D. No. TAF-44-08-00016-P                                                      present at the auction event).
                                                                                            (‘‘a’’) For purposes of subparagraph (i) of this paragraph, if an
                                                                                exempt organization described in section 1116(a)(4), (5), or (6) of the Tax
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     Law conducts no more than two auction events during a calendar year,
cedure Act, NOTICE is hereby given of the following proposed rule:              then sales made at these events are not considered to be made with a
Proposed Action: Amendment of sections 526.10, 529.7, 529.8 and 529.9           degree of regularity, frequency, and continuity from a shop or store and
of Title 20 NYCRR.                                                              are not subject to tax provided:

                                                                                                                                                          31
Rule Making Activities                                                                                       NYS Register/October 29, 2008
               (‘‘1’’) the exempt organization does not otherwise make sales              (ii) If an exempt post, organization, or affiliate operates a shop or
of similar (though not necessarily identical) items of tangible personal         store and also makes retail sales of similar (though not necessarily identi-
property at a shop or store; and                                                 cal) items of tangible personal property by any means other than at its
               (‘‘2’’) the auction events are not conducted on the premises      shop or store (such as by remote means or at an auction), those additional
of a commercial auction house or on any premises where an auctioneer is          sales are considered to be made from its shop or store.
conducting other auction sales.                                                           (iii) Notwithstanding any other provision of this paragraph and
            (‘‘b’’) An auction event is any day or portion of a day during       except as provided by law, all of the provisions of paragraph (2) of
which auction sales take place. Accordingly, if an exempt organization           subdivision (i) of section 529.7 of this Part apply to sales of tangible
conducts only one or two one-day auctions during a calendar year or only         personal property and services by an exempt post, organization, or
one auction over a two-day period during a calendar year (as described in        affiliate.
clause (‘‘a’’) of this subparagraph), the sales made at any of these auc-           Section 10. Paragraph (1) of subdivision (d) of section 529.9 of such
tion events are not taxable. Auctions conducted by different auctioneers or      regulations is amended to read as follows:
auction services constitute separate auction events.                                   (1) Except as provided in [paragraphs (2) and (3) of this subdivision]
            (‘‘c’’) If an exempt organization conducts, or schedules or          section 1116 of the Tax Law or other law, sales of tangible personal prop-
otherwise intends to conduct, three or more auction events during a              erty and services by exempt Indian nations or tribes are exempt from the
calendar year, sales made at these events are considered to be made with         sales and use tax.
a degree of regularity, frequency, and continuity from a shop or store, and         Section 11. New subparagraphs (iii) and (iv) are added to paragraph (2)
it must collect tax on all taxable sales commencing with the first event.        of subdivision (d) of section 529.9 of such regulations, following Example
However, if an exempt organization does not schedule or otherwise intend         1, to read as follows:
to conduct more than two auction events during a calendar year, but in                    (iii) If an exempt Indian nation or tribe operates a shop or store
fact conducts more than two auction events that year, it does not have to        and also makes retail sales of similar (though not necessarily identical)
collect tax on sales made at the first two auction events provided they meet     items of tangible personal property by any means other than at its shop or
the requirements described in clause (‘‘a’’) of this subparagraph. But it        store (such as by remote means or at an auction), those additional sales
must collect tax on all taxable sales made at the third and any subsequent       are considered to be made from its shop or store.
auction events.                                                                           (iv) Notwithstanding any other provision of this paragraph and
         (vii) For calendar years beginning on or after January 1, 2009,         except as provided by law, all of the provisions of paragraph (2) of
the following provisions apply to sales made at auction events by remote         subdivision (i) of section 529.7 of this Part apply to sales of tangible
means (‘‘i.e.,’’ bidders or their representatives are not physically present     personal property and services by an exempt Indian nation or tribe.
at the auction event).                                                              Section 12. This rule will take effect on January 1, 2009.
            (‘‘a’’) For purposes of subparagraph (iv) of this paragraph, if      Text of proposed rule and any required statements and analyses may be
an exempt organization described in section 1116(a)(4), (5), or (6) of the       obtained from: John W. Bartlett, Tax Regulations Specialist 4, Depart-
Tax Law conducts no more than two auction events during a calendar               ment of Taxation and Finance, Taxpayer Guidance Division, Building 9,
year by remote means, then sales made at these events are not considered         W.A. Harriman Campus, Albany, NY 12227, (518) 457-2254, email:
to be made with a degree of regularity, frequency, and continuity and are        tax regulations@tax.state.ny.us
not subject to tax provided the exempt organization does not otherwise
make sales of similar (though not necessarily identical) items of tangible       Data, views or arguments may be submitted to: William Ryan, Director,
personal property at a shop or store or by remote means.                         Department of Taxation and Finance, Taxpayer Guidance Division, Build-
            (‘‘b’’) An auction event by remote means is an auction con-          ing 9, W.A. Harriman Campus, Albany, NY 12227, (518) 457-1153,
ducted for a period of time beginning with a common date and closing on          email: tax regulations@tax.state.ny.us
a common date during which one or more taxable items of tangible                 Public comment will be received until: 45 days after publication of this
personal property are offered for sale to the highest bidder. Generally,         notice.
each item must be offered for sale for the entire duration of the event for it   Regulatory Impact Statement
to be considered a single auction event; however, the occasional late ad-           1. Statutory authority: Tax Law, sections 171, First; 1116(b)(1); 1142(1)
dition of an item or items after the start of the event, to end on the common    and (8); and 1250 (not subdivided) and L. 2008, Ch. 57, Part KK-1. Sec-
closing date, will not be considered a new auction event. In addition, if        tion 171, First provides for the Commissioner of Taxation and Finance to
items are offered for bid and bidding for those items ends on the same day,      make reasonable rules, consistent with law, that may be necessary for the
that day will be considered one auction event. Auctions conducted by dif-        exercise of the Commissioner's powers and the performance of the Com-
ferent auctioneers or auction services constitute separate auction events.       missioner's duties under the Tax Law. Section 1116(b)(1), amended by
Accordingly, if an exempt organization has only one or two auction events        Part KK-1 of Chapter 57 of the Laws of 2008 (‘‘Part KK-1’’), provides
during a calendar year by remote means (as described in clause (‘‘a’’) of        limitations on the exemptions for sales by certain exempt organizations.
this subparagraph), the sales made at either of these auction events are         Sections 1142(1) and (8) of Article 28 and section 1250 of Article 29 of
not taxable.                                                                     the Tax Law provide for the adoption of rules that are appropriate to carry
            (‘‘c’’) If an exempt organization conducts, or schedules or          out and jointly administer the New York State and local sales and
otherwise intends to conduct, three or more auction events during a              compensating use taxes imposed by and pursuant to the authority of these
calendar year by remote means, sales made at these events are considered         Articles.
to be made with a degree of regularity, frequency, and continuity, and it           2. Legislative objectives: This rule is proposed pursuant to the above
must collect tax on all taxable sales commencing with the first event.           authority to update the sales and use tax regulations and provide the
However, if an exempt organization does not schedule or otherwise intend         department's interpretations regarding the sales tax on sales by certain
to conduct more than two auction events by remote means during a                 exempt organizations. The rule updates the regulations to reflect Part
calendar year, but in fact conducts more than two auction event by remote        KK-1, which requires certain exempt organizations to collect sales tax on
means that year, it does not have to collect tax on sales made at the first      additional sales, including collecting tax on sales at online stores as they
two auction events provided they meet the requirements described in              would if the organizations were operating brick and mortar stores.
clause (‘‘a’’) of this subparagraph. But it must collect tax on all taxable         3. Needs and benefits: This rule updates the regulations. Part KK-1
sales made at the third and any subsequent auction events.                       amended section 1116(b)(1) of the Tax Law to expand the existing ‘‘shop
   Section 6. Subparagraph (ii) of paragraph (2) of subdivision (d) of sec-      or store’’ provision so that certain additional sales of tangible personal
tion 529.8 of such regulations is amended to read as follows:                    property and services are subject to sales tax when sold by organizations
         (ii) spouses, widows, [or] widowers, ancestors, or lineal descen-       that are otherwise exempt from tax pursuant to sections 1116(a)(4), (5),
dants of the individuals referred to in paragraphs (1) and (2)(i) of this        and (6) of the Tax Law. These provisions exempt religious, charitable, sci-
subdivision.                                                                     entific, testing for public safety, literary, and educational organizations;
   Section 7. Paragraph (1) of subdivision (k) of section 529.8 of such          organizations that foster national or international amateur sports competi-
regulations is amended to read as follows:                                       tion; organizations for the prevention of cruelty to children or animals;
      (1) Except as provided in [paragraphs (2), (3) and (4) of this subdivi-    veterans' posts and organizations; and Indian nations or tribes (collec-
sion] section 1116 of the Tax Law or other law, sales of tangible personal       tively referred to as ‘‘exempt organizations’’). Generally, retail sales of
property and services by exempt posts, organizations, and affiliates are         tangible personal property from shops or stores operated by these exempt
exempt from the sales and use tax.                                               organizations have historically been subject to tax. Sections 529.7(i),
   Section 8. Paragraph (2) of subdivision (k) of section 529.8 of such          529.8(k), and 529.9(d) of the regulations are being amended to reflect the
regulations is renumbered to be subparagraph (i) of such paragraph.              additional sales made taxable by Part KK 1, which include sales of
   Section 9. New subparagraphs (ii) and (iii) are added to paragraph (2)        consumer utility services and services to real property; remote sales (e.g.,
of subdivision (k) of section 529.8 of such regulations, following Example       sales over the Internet) of tangible personal property if made with a degree
6, to read as follows:                                                           of regularity, frequency, and continuity; and leases and rentals of tangible

32
NYS Register/October 29, 2008                                                                                             Rule Making Activities
personal property, whether or not made at a shop or store. The rule also         ers, maintain accurate sales records, file returns, and remit tax due. (Most
provides that if an exempt organization operates a shop or store and sells       exempt organizations currently maintain records for other purposes.)
similar items of tangible personal property by any other means (e.g., over       Depending upon the extent of sales, the department estimates it should
the Internet, by mail order, door to door, or at auction), those other sales     average about 5 hours per sales-tax quarter to accomplish these tasks. As-
are considered to be made by the shop or store. Because the new legisla-         suming an hourly rate of $29 an hour, the average cost to comply with this
tion applies to remote auction sales, this rule provides guidance regarding      rule for the first time would be approximately $200. After registration, the
when both remote and traditional auction sales are considered to be made         quarterly cost of compliance would be approximately $145.
with a degree of regularity, frequency, and continuity, as provided in Part         (b) Costs to the state and its local governments including this agency.
KK 1 and the department's existing regulations. The rule also makes edito-       There are no costs to the state or its local governments for the implementa-
rial and technical changes to the affected regulations. This rule harmonizes     tion and continuing administration of this rule. To the extent that any
the regulations with current law and provides guidance with respect to           exempt organizations are required to collect tax based on the interpreta-
other taxable sales made by exempt organizations.                                tions in this rule alone, this agency will incur minimal costs associated
   4. Costs: (a) Costs to regulated parties. There are limited costs to exempt   with registering these organizations for sales tax purposes, processing
organizations for the implementation of and continuing compliance with           their tax returns, and collecting tax due.
this rule. Three aspects of the rule itself will result in a total estimated        (c) Information and methodology. The information and methodology
increase in state and local sales tax revenue in the amount of $2.6 million      are described above and additionally are based on discussions among
annually, beginning with the 2009-2010 fiscal year. Consequently, exempt         personnel from the department's Office of Tax Policy Analysis, Manage-
organizations will incur costs associated with collecting this tax from their    ment Analysis and Project Services Bureau, Office of Budget and Manage-
customers and remitting it to the department.                                    ment Analysis, and Office of Counsel.
   The first aspect provides that if an exempt organization operates a shop         5. Local government mandates: None.
or store and makes other sales of similar taxable items, sales tax must be          6. Paperwork: Among other responsibilities, the Tax Law requires
collected on these other sales. Because the majority of these sales are tax-     ‘‘persons required to collect tax’’ (Tax Law, section 1131[1]) to register
able pursuant to Part KK-1, the resulting sales tax revenue attributable to      for sales tax purpose, keep records, file returns, and pay over to the depart-
this rule should be minimal and is accounted for as auction sales in the         ment sales tax collected from customers. For tax exempt organizations af-
estimate below. Any costs associated with collecting this tax should also        fected by Part KK-1, this rule imposes no requirements beyond those
be minimal because these organizations are already operating shops or            required by law. To the extent that any exempt organizations are required
stores and should be in compliance with the Tax Law.                             to collect tax based on the interpretations in this rule alone, such organiza-
   The second aspect provides, in general, that traditional auction sales by     tions must meet their statutory responsibilities.
an exempt organization are subject to tax if the organization holds three or        7. Duplication: None.
more auction events (as described in the rule) during a calendar year. In           8. Alternatives: No alternatives were considered for those nondiscretion-
this case, the sales would be considered made with a degree of regularity,       ary provisions of the rule that simply reflect Part KK-1. In developing this
frequency, and continuity. Data from sales tax returns does not provide in-      rule, the department reached out to 23 organizations, as mentioned in the
formation about auction sales by exempt organizations. Thus, this estimate       Regulatory Flexibility Analysis for Small Businesses and Local Govern-
is based on indirect sources and the expertise of department personnel           ments and the Rural Area Flexibility Analysis filed with this rule. No
whose responsibilities encompass exempt organization activities. The             comments were received. The department considered whether to continue
National Center for Charitable Statistics, in conjunction with the Urban         its current non-taxable approaches to collateral sales by exempt organiza-
Institute, has compiled data that includes the financial information of tax-     tions that operate shops or stores and to traditional auction sales by these
exempt organizations in New York. The data is culled from Internal Reve-         organizations. However, in the interest of consistent treatment, the depart-
nue Service Form 990, which is filed by organizations that are exempt            ment did not consider this viable. In addressing auction sales, the depart-
from federal tax and includes information related to their revenues. These       ment also considered the need to quantify ‘‘sales… made with a degree of
organizations do not necessarily parallel the exempt organizations af-           regularity, frequency, and continuity.’’ While this phrase is new to Part
fected by this rule; however, Form 990 is the best available data regarding      KK-1, it is a long-standing regulatory concept that has traditionally been
sources of exempt organization revenue. New York ‘‘net special events            determined based on the facts and circumstances of each situation.
income’’ and ‘‘inventory sales and other income,’’ as reported, totaled          However, because the department has not previously issued general guid-
$888 million in 2006. The department estimated that approximately 10%,           ance on auction sales by exempt organizations, the department concluded
or $88 million, was derived from traditional auction sales, but that only        that some guidance was appropriate. The three-or-more threshold pre-
75%, or $67 million, of those sales were taxable. The department believes        scribed by the rule is considered by the department to be reasonable, while
the most common auction pattern is for an exempt organization to have a          still affording exempt organizations some latitude to conduct their fund
spring and/or a fall fund-raising auction and that only one-third of auction     raising auctions without being responsible for the collection of tax.
sales come from organizations that hold more than two auctions per year.            9. Federal standards: This rule does not exceed any minimum standards
This results in approximately $22 million in taxable sales from organiza-        of the federal government.
tions having more than two auctions a year. Under the rule, if more than            10. Compliance schedule: Part KK-1, as reflected in the rule, became
two auctions are planned in a calendar year, tax must be collected for all       effective on September 1, 2008. On August 11, 2008, the department
taxable sales, including those during the first two auctions. Therefore,         published TSB-M-08(5)S, Tax Law Amendments Related to Sales Made
most of the $22 million would come from organizations that know they             by Certain Sales Tax Exempt Organizations Effective September 1, 2008,
will be having more than two events, making all of their auction sales           to provide guidance with respect to the new legislation. Exempt organiza-
taxable. However, there will be a small portion of that $22 million attrib-      tions should currently be in compliance with these provisions. This rule
utable to organizations that had not planned a third auction. For those          will take effect on January 1, 2009, giving exempt organizations time to
organizations, only sales made at the third and subsequent auctions are          comply. Once this rule has been adopted and published in the State Regis-
taxable. These sales were accounted for by reducing the $22 million by           ter, the department intends to issue further guidance on taxable sales by
5% to $20.8 million. Applying an average combined state and local sales          exempt organizations.
tax rate of 8% resulted in an estimated increase in tax of approximately         Regulatory Flexibility Analysis
$1.6 million. Exempt organizations would incur routine costs of register-           1. Effect of rule: Approximately 119,500 exempt organizations that
ing for sales tax purposes, if not already registered, collecting this tax       have obtained Exempt Organization Certificates from the Department of
from their customers, and filing returns.                                        Taxation and Finance are classified as active. This figure is subject to
   The last aspect concerns traditional auctions held at commercial auction      change daily. Whether all of these organizations are, in fact, currently
houses or at other auction premises. There is no available data on auctions      operating as exempt organizations in New York State cannot be
of this nature. However, anecdotal evidence suggests that the amount of          determined. Moreover, of the approximately 119,500 exempt organiza-
sales at these auctions is minimal. The department estimated that not more       tions, it cannot be ascertained how many are exempt from tax pursuant to
than $12.5 million of taxable property would be subject to tax under this        sections 1116(a)(4), (5), or (6) of the Tax Law (i.e., those organizations
aspect of the rule, resulting in an increase in revenue of approximately $1      affected by this rule); however, it is the vast majority. See section 3,
million (average combined rate of 8%). Exempt organizations would incur          ‘‘Needs and benefits,’’ of the Regulatory Impact Statement filed with this
costs associated with collecting this tax and filing returns.                    rule for a description of the subject exempt organizations. In addition, of
   It is noted that while these exempt organizations become liable for the       the currently active section 1116(a)(4), (5), and (6) exempt organizations,
tax at issue, the tax is collected from their customers by the organizations     both the number of those that are making taxable sales that are covered ei-
as trustees for the state and local governments imposing tax.                    ther by Part KK 1 of Chapter 57 of the Laws of 2008 (‘‘Part KK-1’’) or by
   The department estimates that it should take an exempt organization           this rule and the number of those that constitute ‘‘small businesses,’’ as
that is not registered about 2 hours to learn its new responsibilities and to    defined in section 102(8) of the State Administrative Procedure Act, are
file Form DTF-17, Application to Register for a Sales Tax Certificate of         undeterminable. Accordingly, the effect of the rule on small businesses in
Authority. Once registered, the organization must collect tax from custom-       distinction from others cannot be determined with any degree of accuracy.

                                                                                                                                                           33
Rule Making Activities                                                                                    NYS Register/October 29, 2008
The rule affects all section 1116(a)(4), (5), and (6) exempt organizations     (10) of the State Administrative Procedure Act. There are 44 counties in
in the same manner, some of which might be considered small businesses.        New York State that are rural areas (having a population of less than
The rule does not impose any adverse economic impact, compliance               200,000) and 9 more counties having towns that are rural areas (with
requirements, or implementation or administration costs on local govern-       population densities of 150 or fewer people per square mile.) This rule af-
ments, which will not be addressed any further in this statement.              fects all section 1116(a)(4), (5), and (6) exempt organizations in the same
   2. Compliance requirements: The rule reflects the statutory amend-          manner; that is, it does not distinguish between exempt organizations lo-
ments enacted by Part KK-1 and provides related rules concerning other         cated in rural, suburban, or metropolitan areas of this state.
taxable sales made by section 1116(a)(4), (5), and (6) exempt                     2. Reporting, recordkeeping, and other compliance requirements; and
organizations. As discussed in the Regulatory Impact Statement, every          professional services: The rule reflects the statutory amendments enacted
person required to collect sales tax must register for sales tax purposes,     by Part KK-1 of Chapter 57 of the Laws of 2008 (‘‘Part KK 1’’) and
keep records, file returns, remit taxes, and otherwise comply with all of
the obligations of a person required to collect sales tax that are imposed     provides related rules concerning other taxable sales made by section
under the Tax Law and under the existing regulations. Such persons             1116(a)(4), (5), and (6) exempt organizations. As noted in the accompany-
include small businesses.                                                      ing statements, every person required to collect sales tax must register for
   3. Professional services: The rule itself imposes no requirements upon      sales tax purposes, keep records, file returns, remit taxes, and otherwise
small businesses concerning professional services. However, section            comply with all of the obligations of a person required to collect sales tax
1116(a)(4), (5), and (6) exempt organizations that are also small busi-        that are imposed under the Tax Law and under the existing regulations.
nesses may, depending upon their own expertise and on the extent of their      This includes affected exempt organizations located in rural areas.
taxable sales, elect to employ professional services, such as bookkeepers      Depending upon their own expertise and on the extent of their taxable
and accountants, in meeting their compliance requirements.                     sales, these organizations may elect to employ professional services, such
   4. Compliance costs: Section 1116(a)(4), (5), and (6) exempt organiza-      as bookkeepers and accountants, in meeting their compliance
tions that are also small businesses may incur some of the limited costs to    requirements.
regulated parties that are discussed in detail in the Regulatory Impact           3. Costs: Section 1116(a)(4), (5), and (6) exempt organizations that are
Statement. No variations in these costs exist solely because an exempt or-     located in rural areas may incur some of the limited costs to regulated par-
ganization may be a resident in this state, independently owned and oper-      ties that are discussed in detail in the Regulatory Impact Statement. For
ated, and employs 100 or less individuals.                                     example, based on the previously mentioned NCCS data, approximately
   5. Economic and technological feasibility: The rule does not impose         12.7% of total revenue comes from rural areas. Using the same methodol-
any economic or technological compliance burdens on small businesses.          ogy as used in the impact statement, the department estimates that of the
   6. Minimizing adverse impact: In developing this rule, the department       $2.6 million increase in state and local sales tax revenue attributable to
was aware of the need to consider approaches to implement Part KK-1            this rule, approximately $212,000 comes from exempt organizations lo-
while minimizing any adverse economic impact on small businesses.              cated in rural areas. Such organizations would incur costs associated with
However, the legislation requires all section 1116(a)(4), (5), and (6)         collecting this tax from their customers and remitting it to the department.
exempt organizations to collect sales tax on specific taxable sales. Part      There are no variations in costs based on whether the public or private
KK-1 does not distinguish between affected exempt organizations that are       entities are in rural areas.
small businesses and any other section 1116(a)(4), (5), and (6) exempt            4. Minimizing adverse impact: In developing this rule, the department
organizations. The rule likewise treats all of these exempt organizations in   was aware of the need to consider approaches to implement Part KK-1
the same manner. Accordingly, different compliance and reporting               while minimizing any adverse impacts on public and private sector
requirements or timetables unique to small businesses are not practical ap-    interests in rural areas. However, as explained with respect to small busi-
proaches for this rule. That is not to say that the Tax Law and the existing   nesses, the legislation requires all section 1116(a)(4), (5), and (6) exempt
regulations do not already have provisions that minimize the compliance        organizations to collect sales tax on certain taxable sales. Part KK-1 does
requirements imposed on persons required to collect tax, including             not distinguish between exempt organizations that are located in rural ar-
vendors. For example, at their discretion, vendors may keep records            eas and any other section 1116(a)(4), (5), and (6) exempt organizations.
electronically and certain vendors may file returns and pay taxes on an an-    The rule likewise treats all of these exempt organizations in the same man-
nual basis, rather than monthly or quarterly. In addition, the nature of the   ner, regardless of where they might be located in the state. Consequently,
rule and the applicable provisions of law do not lend themselves to the use    different compliance and reporting requirements or timetables that take
of performance standards nor do they allow for any discretionary               into account the resources available to rural areas are not practical ap-
exemptions.                                                                    proaches for this rule. In addition, as previously mentioned, the nature of
   7. Small business participation: The following organizations were noti-     the rule and the applicable provisions of law do not lend themselves to the
fied that the department was in the process of developing this rule and        use of performance or outcome standards nor do they allow for any
were given the opportunity to participate in its development: the Associa-     discretionary exemptions.
tion of Towns of New York State; the Division of Local Government Ser-            5. Rural area participation: The following organizations were notified
vices of the New York State Department of State; the Division for Small        that the department was in the process of developing this rule and were
Business of Empire State Development; the National Federation of Inde-         given the opportunity to participate in its development: the Association of
pendent Businesses; the New York State Association of Counties; the            Towns of New York State; the Division of Local Government Services of
New York State Conference of Mayors and Municipal Officials; the Small         the New York State Department of State; the Division for Small Business
Business Council of the New York State Business Council; the Retail            of Empire State Development; the National Federation of Independent
Council of New York State; the New York State Association of Conve-            Businesses; the New York State Association of Counties; the New York
nience Stores; the New York State Auctioneers Association, Inc.; the           State Conference of Mayors and Municipal Officials; the Small Business
United Way of New York; the Statewide SEFA Council; the National               Council of the New York State Business Council; the Retail Council of
Council of Nonprofit Associations; the Greater New York Hospital As-           New York State; the New York State Association of Convenience Stores;
sociation; the Healthcare Association of New York State; the Medical So-       the New York State Auctioneers Association, Inc.; the United Way of
ciety of the State of New York; the New York Health Information Manage-        New York; the Statewide SEFA Council; the National Council of Non-
ment Association; the New York State School Boards Association; the            profit Associations; the Greater New York Hospital Association; the
New York State Parent-Teacher Association; the Nonprofit Coordinating          Healthcare Association of New York State; the Medical Society of the
Committee of New York; the Charities Bureau of the New York State              State of New York; the New York Health Information Management As-
Department of Law; the Department of New York Veterans of Foreign              sociation; the New York State School Boards Association; the New York
Wars; and the American Legion's Department of New York. As part of             State Parent-Teacher Association; the Nonprofit Coordinating Committee
our outreach, we invited most of these organizations to extend our invita-     of New York; the Charities Bureau of the New York State Department of
tion for input to other exempt organizations that may be affected by this      Law; the Department of New York Veterans of Foreign Wars; and the
rule. No comments were received concerning the rule.                           American Legion's Department of New York. As part of our outreach, we
                                                                               invited most of these organizations to extend our invitation for input to
Rural Area Flexibility Analysis                                                other exempt organizations that may be affected by this rule. Such
   1. Types and estimated numbers of rural areas: As explained in the          organizations include public and private interests in rural areas. No com-
Regulatory Flexibility Analysis for Small Businesses and Local Govern-         ments were received concerning the rule.
ments filed with this rule, there are approximately 119,500 exempt
organizations registered with this department, but the number directly af-     Job Impact Statement
fected by the rule is not quantifiable with any degree of certainty.           A Job Impact Statement is not being submitted with this rule because it is
However, based on the National Center for Charitable Statistics                evident from the subject matter that the rule will have no impact on jobs or
(‘‘NCCS’’) data referred to in the accompanying Regulatory Impact State-       employment opportunities beyond that, if any, required by statute. This
ment and discussed further below, it is reasonable to assume that some of      rule updates the sales and compensating use tax regulations to reflect Part
these organizations are located in rural areas as defined by section 102       KK 1 of Chapter 57 of the Laws of 2008 concerning taxable sales by

34
NYS Register/October 29, 2008                                                                                     Rule Making Activities
certain exempt organizations, and it provides related rules concerning      software are required by law to file returns electronically. (see, Tax
other taxable sales by these organizations, including sales at auctions.    Law sections 29, 658[g]) The amendments would allow the Depart-
                                                                            ment flexibility in responding to fluctuations in cost and demand.
                PROPOSED RULE MAKING
                                                                               4. Costs:
               NO HEARING(S) SCHEDULED
                                                                                  (a) Costs to regulated persons: It is estimated that there would be
Fees Charged for Business Corporation Franchise Tax Searches,               no costs to regulated parties associated with implementation of this
Bulk Orders of Forms, and Publication 352                                   rule.
                                                                                  (b) Costs to the agency and to the State and local governments
I.D. No. TAF-44-08-00017-P
                                                                            including this agency: It is estimated that the implementation and
                                                                            continued administration of this rule will not impose any costs upon
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                 this agency, New York State, or its local governments.
cedure Act, NOTICE is hereby given of the following proposed rule:
                                                                                  (c) Information and methodology: This analysis is based on a
Proposed Action: Repeal of Part 11 and amendment of Part 200 of Title       review of the rule and on discussions among personnel from the
20 NYCRR.
                                                                            Department's Taxpayer Guidance Division, Office of Counsel, Office
Statutory authority: Tax Law, sections 171, subd. First, 697(a) and         of Tax Policy Analysis, and Office of Budget and Management
1096(a)
                                                                            Analysis.
Subject: Fees charged for business corporation franchise tax searches,
bulk orders of forms, and Publication 352.                                     5. Local government mandates: This rule imposes no mandates
Purpose: To eliminate unnecessary provisions of the regulations.            upon any county, city, town, village, school district, fire district, or
                                                                            other special district.
Text of proposed rule: Section 1. Part 11 of such regulations is
REPEALED.                                                                      6. Paperwork: The rule imposes no new reporting requirements,
   Section 2. Section 200.2 of such regulations is amended to read as       forms, or other paperwork upon regulated parties.
follows:                                                                       7. Duplication: There are no relevant rules or other legal require-
   As used in this Subchapter, form numbers and titles are for infor-       ments of the Federal or State governments that duplicate, overlap, or
mation only and each such number and title includes all successor           conflict with this rule.
form numbers and titles assigned by the New York State Department              8. Alternatives: There were no significant alternatives to this pro-
of Taxation and Finance. All such forms and successor forms may be          posal considered by this agency.
obtained by forwarding a request to the New York State Department              9. Federal standards: The rule does not exceed any minimum stan-
of Taxation and Finance[, Taxpayer Assistance Bureau, Forms Control         dards of the Federal government for the same or similar subject area.
Section, W.A. Harriman Campus, Albany, NY 12227].                              10. Compliance schedule: The amendment will take effect when the
   Section 3. Section 200.4 of such regulations is REPEALED.                Notice of Adoption is published in the State Register. No additional
Text of proposed rule and any required statements and analyses may be       time is needed in order for regulated parties to comply with this rule.
obtained from: John W. Bartlett, Tax Regulations Specialist 4, Depart-      Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job
ment of Taxation and Finance, Taxpayer Guidance Division, Building 9,       Impact Statement
W.A. Harriman State Campus, Albany, NY 12227, (518) 457-2254, email:
tax regulations@tax.state.ny.us                                                A Regulatory Flexibility Analysis for Small Businesses and Local
                                                                            Governments, Rural Area Flexibility Analysis, and Job Impact State-
Data, views or arguments may be submitted to: William Ryan, Director,
Department of Taxation and Finance, Taxpayer Guidance Division, Build-      ment are not being submitted with this rule because this rule will not
ing 9, W.A. Harriman State Campus, Albany, NY 12227, (518) 457-1153,        impose any adverse economic impact on small businesses or local
email: tax regulations@tax.state.ny.us                                      governments, or on public or private entities in rural areas, nor any ad-
Public comment will be received until: 45 days after publication of this    ditional reporting, recordkeeping, or other compliance requirements
notice.                                                                     on these entities. Further, it is evident from the subject matter of the
Regulatory Impact Statement                                                 rule that it will have no adverse impact on jobs and employment
   1. Statutory authority: Tax Law, sections 171, Subdivision First;        opportunities.
697(a); and 1096(a). Section 171, Subdivision First authorizes the             This rule merely updates the Personal Income Tax and Business
Commissioner to make reasonable rules and regulations that may be           Corporation Franchise Tax Regulations to eliminate unnecessary pro-
necessary for the exercise of the Commissioner's powers and perfor-         visions regarding the setting of fees for corporation franchise tax
mance of the Commissioner's duties. Sections 697(a) and 1096(a) au-         searches, bulk orders of forms, and a publication containing certain
thorize the Commissioner to adopt regulations relating specifically to      forms and instructions. Under section 102.2(b)(xi)(2) of the State
the personal income tax and the business corporation franchise tax,         Administrative Procedure Act, fees of less than $100 are excluded
respectively.                                                               from the definition of “rule”.
   2. Legislative objectives: This rule is being proposed pursuant to
this authority to eliminate unnecessary provisions of the Personal
Income Tax and Business Corporation Franchise Tax Regulations.
   3. Needs and benefits: The purpose of these amendments is to
remove unnecessary provisions of the regulations regarding the set-
ting of fees for corporation franchise tax searches, bulk orders of
forms, and a publication containing certain forms and instructions.
Under section 102.2(b)(xi)(2) of the State Administrative Procedure
Act, fees of less than $100 are excluded from the definition of ‘‘rule’’.
The subject fees are nominal and well beneath this threshold. For
instance, the bulk order fees are $10 plus $1 for each 100 forms after
the first 200. These fees have not changed in many years. The Depart-
ment expects modest increases in these fees. However, in accordance
with State Administrative Procedure Act section 102.2, the fees will
not be set by rule. In addition, it is noted that, with the advent of
technology which enables taxpayers and preparers to obtain forms
from the Department's website and to file returns electronically, the
need for tax preparers to order forms in bulk has declined. Tax prepar-
ers preparing more than one hundred returns a year and using tax

                                                                                                                                                 35

								
To top